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HX64073408 
RA399.A3  Am3        A  digest  of  the  case 


■■HHMH 


A   DIGEST    OF    THE 


CASE  LAW 


ON  THE 


STATUTORY  REGULATION 


OF  THE 


PRACTICE  of  MEDICINE 


COMPILED  BY  THE 

MLDICO-LEGAL   BUREAU 

OF  THE 

AMERICAN    MEDICAL    ASSOCIATION 


AMERICAN    MEDICAL   ASSOCIATION 

Five  Hundred  and  Thirty-five  North  Dearborn  Street 

CHICAGO 


/•S~-   III** 


Copyright  1915 

BY  THE 
AMERICAN   MEDICAL  ASSOCIATION 


CONTENTS 


PART  I.   A  DIGEST  OF  THE  CASE  LAW  ON  THE  STATU- 
TORY  REGULATION   OF    THE   PRACTICE 
OF    MEDICINE 


CHAPTER     I 

THE     CONSTITUTIONALITY     OF     MEDICAL     PRACTICE     ACTS 


PART     I.     UNDER     THE     FEDERAL     CONSTITUTION 

§       1.  Introduction 2 

§      2.  The  Powers  of  Government  in  Relation  to  Medical  Practice  Acts 3 

§      3.  Police  Power  Denned  3 

§      4.  The  Practice  of  Medicine  and  the  Police  Power 5 

§      5.  Medical  Practice  Acts  under  the  Federal  Constitution 7 

§      6.  The  Constitutionality  of  Boards  of  Medical  Examiners ;  the  Power  to 

Create  such  Boards .' 11 

§      7.  Medical  Examining  Boards  and  the  Separation  of  Powers 12 

§      8.  Medical  Boards  and  the  Validity  of  their  Powers 14 

§      9.  The  Power  of  a  Board  to  Revoke  a  License  for  Cause 15 

§     10.  The  Term  Unprofessional  Conduct  is  not  Void  for  Uncertainty 17 

§     11.  Medical  Practice  Acts  and  the  Privilege  and  Immunity  Clauses 19 

§     12.  (a)  The  Due  Process  of  Law  Clause  in  Amendment  14.     (b)   "The 

Equal  Protection  of  the  Law" 20,  25 

§     13.  Medical  Practice  Acts  and  the  Ex  Post  Facto  Clause 28 

§     14.  Medical    Practice    Acts    and    the    Impairment    of    the    Obligation    of 

Contract  31 

§  15.  Medical  Practice  Acts  and  Former  Acquittal  or  Conviction  —  "Autre- 
fois Acquit  or  Convict" 32 

§  16.  Medical  Practice  Acts  and  the  So-Called  "Schools  of  Medicine."  (a) 
Eclectics;  (b)  Osteopaths;  (c)  chiropractors;  (d)  Suggestive 
Therapeutics;  (e)  Magnetic  Healing;  (f)  Healers;  (g)  Christian 
Scientists 33-40 

PART     II.     UNDER     STATE     CONSTITUTION 

§     17.  Medical  Practice  Acts  Generally 40 

§     18.  Titles  of  Medical  Practice  Acts 43 

§     19.  Medical  Boards   44 

§    20.  Various   Statutory  Provisions 49 

§    21.  So-Called  Schools 60 


iv  Table    of    Contents 

CHAPTER     II 

THE    PRACTICE    OF    MEDICINE    DEFINED 

§    22.  The  Construction  of  Medical  Practice  Acts 65 

§    23.  Construing  Technical  Words   67 

§    24.  "Medicine"  is  a  Technical  Word  and  must  be  so  Construed 69 

§    25.  "Medicine"  Defined 70 

§    26.  Medicine  as  Defined  by  the  Legislature  and  by  the  Courts 72 

§    27.  A  Broad  Interpretation  of  the  Word  "Medicine"  does  not  give  it  a 

New  Meaning 73 

§    28.  The  Language  must  be   Construed  Liberally  in   order  to  give  Full 

Effect  to  the  Enactment  73 

§    29.  The  Phrase  "Practice  of  Medicine"  as  Judicially  Considered 76 

§     30.  "Treat,"  "Operate  on"    79 

§     31.  Prescribing   Remedies   79 

§    32.  The  Practice  of  Medicine  a  Business 80 

§     33.  Advertising  as  Evidence  of  the  Practice  of  Medicine 81 

§    34.  Practicing  under  the  Direction  of  a  "Licensed  Physician" 83 

§    35.  Remedies  Sent  from  an  Adjoining  State 84 

§    36.  Ophthalmology 85 

§     37.  Dentistry 85 

§    38.  "Material  Remedy" 85 

§     39.  "Mental  Treatment" 86 

§    40.  Treatment  in  an  Emergency 86 

§    41.  Itinerant  Physicians  87 

§    42.  Medical  Practice  Acts  as  Construed  by  "Minority" 88 

§    43.  Summary 93 

CHAPTER     III 

WHO    ARE    PRACTICING    MEDICINE 

§    44.  In  General  94 

§    45.  Eclecticism  96 

§    46.  Osteopathy 96 

§    47.  Christian  Science 103 

§    48.  Chiropractic 106 

§    49.  Magnetic  Healing  110 

§     50.  Suggestive  Therapeutics  Ill 

§     51.  Midwives  and  Obstetricians 112 

§    52.  Cancer  Cures 114 

§    53.  Ophthalmology 115 

§     54.  Itinerant  Physicians  and  Vendors  of  Drugs  and  Proprietary  Remedies  117 
§     55.  Treatment  Given  under  the  Direction  of  a  Legally  Registered  Physi- 
cian      120 

§     56.  Prescribing  and  Administering  Remedies  for  a  Compensation  and  the 

Like  123 

§     57.  Corporations 123 

§    58.  Clairvoyant,  Magic  Healers : 125 

§    59.  Miscellaneous 127 

( 1 )  Mechano-Neural  Therapy  127 

(2)  Vital  Healing 127 


Table    of    Contents  v 

(3)  Tissue  Foods  127 

(4)  Dermatology 128 

(5)  Bone  Setting,  Surgery  128 

(6)  Medical  Titles  128 

(7)  Advertising  129 

(8)  Furnishing  Medicine  129 

(9)  Nursing  129 

(9)  Acting  in  an  Emergency 129 

§    60.  General  Summary  of  Chapter  III 130 

CHAPTER     IV 

CONDITIONS    PRECEDENT    AND    SUBSEQUENT    TO    THE    RIGHT 

TO     PRACTICE 

§    61.  The  Right  to  Practice  Medicine 132 

§     62.  General  Requirements.     Conditions  Precedent 135 

§    63.  Proof  of  Moral  Character 137 

§    64.  Reputability  of  Applicant's  Medical  College 140 

§    65.  Presentation   of   Diplomas,   Examinations,   Fees,   Etc.,   as   Conditions 

Precedent 143 

§    66.  Registration  of  Licenses  as  a  Condition  Precedent 147 

§    67.  Persons  Who  Have  Failed  to  Perform  the  Conditions  Precedent 148 

§    68.  Impossibility  of  Performing  the  Condition  Precedent  —  Corporations  151 

§     69.  The  Exceptions  under  the  Statutes   153 

§     70.  Conditions  Subsequent.    Unprofessional  Conduct 159 

A.  In  General    159 

B.  Grounds  for  Revocation  of  License 162 

( 1 )  Fraud  in  Procuring  a  License 162 

(2)  Conviction  of  a  Crime  Involving  Moral  Turpitude 163 

(3)  Felony  or  Gross  Immorality  163 

(4)  Procuring  or  Aiding  and  Abetting  in  Procuring  a  Criminal 

Abortion  164 

(5)  Advertising  of  a  Fraudulent  or  Immoral  and  Illegal  Nature  165 

(6)  Unprofessional    or    Dishonorable    Conduct    of    a    Character 

Likely  to  Deceive  or  Defraud  the  Public 167 

CHAPTER     V 

PROCEDURE     AND     PROOF     UNDER     THE     MEDICAL     PRACTICE 

ACTS 

I.     THE     INDICTMENT 

§     71.  A  Misdemeanor-Procedure  Taken 170 

§     72.  The  Indictment  or  Information  Generally 171 

§     73.  The  General  Essentials  of  the  Indictment 171 

§     74.  Duplicity 174 

§     75.  Uncertainty  174 

§     76.  Names  of  Persons  Treated  by  Accused 175 

§     77.  Compensation   177 

§  78.  Without  Having  First  Been   Examined  and   Obtained  a  License  as 

Required  by  Law 178 


vi  Table   of    Contents 

§     79.  Defendant's  School  or  Branch  of  Medicine,  Etc 179 

§    80.  Treating  Human  Beings  179 

§    81.  Exceptions  180 

§    82.  Prior  Practitioner,  Etc. 181 

§     83.  Registration  in   County  of  Residence 182 

§    84.  Itinerants   182 

§    85.  Miscellaneous   183 

(1)  Proving  More  Than  One  Infraction  in  One  Count  —  Defense. .  183 

(2)  Burden  on  Defendant 183 

(3)  Conclusions 183 

ii.   the   proof 

(a)    sufficiency   of   the   evidence 

§    86.  In  General  184 

§    87.  Intent 186 

§    88.  Sufficiency  of  Evidence  under  Statutes  Forbidding  Treatment  by  any 

System  Unless  Duly  Licensed 187 

§    89.  Opening  an  Office 188 

§     90.  Advertising  as  a  Physician '. 188 

§     91.  Recommending  Medicine  for  a  Fee 190 

§    92.  Prescribing  for  a  Fee 190 

§     93.  Prima   Facie  Evidence 192 

§    94.  Burden  on  Defendant 192 

§     95.  Evidence  as  to  a  Particular  School  of  Medicine 193 

(1)  Osteopathy   193 

(2)  Christian  Science   194 

(3)  Chiropractic   194 

(4)  Suggestive  Therapeutics,  Etc 194 

(b)    admissibility   of   evidence 

§    96.  In   General    195 

§    97.  Relevancy 195 

§    98.  Best  Evidence 198 

§     99.  Expert  Witnesses   199 

§  100.  Ordinary  Witnesses  199 

§  101.  Miscellaneous—  , 200 

(1)  Non-Compliance  with  the  Law  as  a  Defense  in  Tort 200 

(2)  Recovery  for  Medical  Services 200 

(3)  Former  Jeopardy  200 

B.    UNPROFESSIONAL    CONDUCT 

I.     THE     REVOCATION     OF     A     LICENSE 
(a)     PROCEDURE 

§  102.  The  Right  to  Practice  Medicine 201 

§  103.  Due  Process  of  Law  201 

§  104.  The  Nature  of  the  Power  and  of  the  Action 202 

§  105.  Procedure  Necessary  204 

§  106.  Criminal  Abortion 205 

§  107.  Appeal  to  Court  of  Law 207 


Table   of   Contents  vii 

(it)    EVIDENCE 

§  108.  As  Essential  to  Sustain  a  Conviction  by  a   Board  of  Unprofessional 

Conduct    208 

CHAPTER     VI 

THE     SANCTION     OF    THE    LAW;     EXTRAORDINARY     REMEDIES 

A.     THE     SANCTION     OF     THE     LAW 

§  109.  In  General  212 

§  110.  Fines  and  Imprisonment 214 

§  111.  Saving  Clause 214 

§  112.  Continuing  or  Single  Offenses 214 

§  113.  Non-Compliance  with  the  Law  Renders  Contract  for  Services  Void.  .  216 

§  114.  The  Refusal  or  Revocation  of  a  License  —  Sanction 218 

B.     EXTRAORDINARY     REMEDIES 

§  115.  In  General  221 

§  116.  Mandamus  222 

§  117.  Function  of  the  Writ  of  Mandamus 222 

§  118.  Unprofessional  Conduct  and  the  Writ  of  Mandamus 224 

§  119.  Matriculation    225 

§  120.  Diploma  from  a  Reputable  College 226 

§  121.  Requirement  of  a  Four  Years'  Course 227 

§  122.  Requirement  of  a  Diploma  and  an  Examination 227 

§  123.  Registration 228 

§  124.  Licensure  under  the  Exception  —  Verifications,  Etc 228 

§  125.  The  Writ  of  Prohibition  230 

§  126.  The  Writ  of  Injunction 231 

§  127.  The  Writ  of  Certiorari  231 


PART  II.    ABSTRACTS  OF  CASES,  ARRANGED   CHRONO- 
LOGICALLY  BY    STATES 


Digitized  by  the  Internet  Archive 

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A  DIGEST  OF  THE   CASE  LAW  ON  THE 

STATUTORY  REGULATION  OF  THE 

PRACTICE    OF    MEDICINE 


CHAPTER  I 

THE  CONSTITUTIONALITY  OF  MEDICAL 
PRACTICE  ACTS 


PART     I.      UNDER     THE      FEDERAL     CONSTITUTION 

1.  Introduction. 

2.  The  Powers  of  Government  in  Relation  to  Medical  Practice  Acts. 

3.  Police  Power  Defined. 

h.  The  Practice  of  Medicine  and  the  Police  Power. 

5.  Medical  Practice  Acts  under  the  Federal  Constitution. 

6.  The  Constitutionality  of  Boards  of  Medical  Examiners;  the  Power  to 

Create  such  Boards. 

7.  Medical  Examining  Boards  and  the  Separation  of  Powers. 

8.  Medical  Boards  and  the  Validity  of  their  Powers. 

9.  The  Power  of  a  Board  to  Revoke  a  License  for  Cause. 

10.  The  Term  Unprofessional  Conduct  is  not  Void  for  Uncertainty. 

11.  Medical  Practice  Acts  and  the  Privilege  and  Immunity  Clauses. 

12.  (a)    The  Due  Process  of  Law  Clause  in  Amendment  l-'t.     (b)  "The 

Equal  Protection  of  the  Law." 

13.  Medical  Practice  Acts  and  the  Ex  Post  Facto  Clause. 

Ik.  Medical   Practice    Acts    and    the    Impairment    of    the    Obligation    of 
Contract. 

15.  Medical  Practice  Acts  and  Former  Acquittal  or  Conviction  —  "Autre- 

fois Acquit  or  Convict." 

16.  Medical  Practice  Acts  and  the  So-Called  "Schools  of  Medicine."     (a) 

Eclectics;  (&)  Osteopaths;  (c)  Chiropractors;  (d)  Suggestive 
Therapeutics;  (e)  Magnetic  Healing;  (/)  Healers;  (g)  Christian 
Scientists. 

PART      II.      UNDER       STATE      CONSTITUTION 

17.  Medical  Practice  Acts  Generally. 

18.  Titles  of  Medical  Practice  Acts. 

19.  Medical  Boards. 

20.  Various  Statutory  Provisions. 

21.  So-Called  Schools. 


Part  I. — Under  the  Federal  Constitution 
§   I. — Introduction 

The  case  law  under  this  head  may  be  conveniently  divided  into  two 
main  topics,  the  constitutionality  of  the  medical  practice  acts,  and  the 
definition  and  enforcement  of  these  statutes.  As  to  the  constitution- 
ality thereof,  the  question  should  be  considered,  first,  as  under  the 
federal  constitution,  and  second,  as  under  the  several  state  constitutions. 

An  analysis  of  the  cases  under  the  general  topic  shows  that  the 
basic  principle  of  restricting  legislation  is  the  maxim:  "Salus  populi 
est  suprema  lex." 

Construed  in  this  light,  the  statutory  regulation  of  the  practice  of 
medicine  is  not  an  attempt  to  set  up  any  one  theory,  or  system,  on  the 
science  of  health.  Rather,  such  enactments  are  indicative  of  two 
ideas :  To  prevent  any  imposition  upon  the  ignorant  and  credulous 
and  to  eliminate  disease  and  suffering.1 

Medical  practice  acts,  therefore,  generally  provide,  that  an  applicant 
for  a  license  to  practice  medicine  must  prove  his  fitness  to  pursue  this 
profession ;  that  he  must  comply  with  certain  regulations  after  licen- 
sure ;  that  he  must  be  prohibited  from  practicing  when  in  any  way 
improperly  prepared;  and  that  he  may  be  punished  by  fines  and  the 
like  for  any  violation  of  the  law.  These  several  penalties,  so  provided, 
are  attachable,  under  "the  law  of  the  land,"  either  on  a  hearing  before 
the  Board  of  Medical  Examiners,  or  after  a  trial  had  by  a  court  of 
judicature  as  established  in  some  organic  act.2 


1.  Dent  v.  West  Virginia,  129  U.  S.  114,  32  L.  ed.  623,  9  Sup.  Ct.  Rep.  231. 
Hawker  v.  New  York,  170  U.  S.  189,  42  L.  ed.  1002,  18  Sup.  Ct.  Rep.  573. 
Watson  v.  Maryland,  218  U.  S.  173,  54  L.  ed.  987,  30  Sup.  Ct.  Rep.  644. 
People   v.   Allcutt,    102  N.   Y.    S.   678,   117   App.   Div.   546;    (aff'd   in   189 

N.  Y.  517,  81  N.  E.  1171). 
People  v.   Mulford,   125   N.   Y.  S.  680,   140  App.  Div.  716;    (aff'd  in  202 

N.  Y.  ). 

Bragg  v.  State,  134  Ala.  165,  58  L.  R.  A.  925,  32  S.  767. 

Smith  v.  State  (Ala.),  63  So.,  28;  s.  c.  aff.  ex  parte  Smith,  63  So.  70. 

State  v.  Buswell,  40  Neb.  158,  24  L.  R.  A.  68,  58  N.  W.  728. 

State  v.  Oredson,  96  Minn.  509,  105  N.  W.  188. 

O'Neil  v.  State,  115  Tenn.  427,  3  L.  R.  A.   (N.  S.)   762,  90  S.  W.  627. 

Parks  v.  State,  159  Ind.  211,  59  L.  R.  A.  190,  64  N.  E.  862. 

People  v.  Blue  Mountain  Joe,   129  111.  370,  21   N.  E.  923. 

State  v.  Bair,  112  Iowa  466,  51  L.  R.  A.  776,  84  N.  W.  532. 

Commonwealth  v.  Jewelle,   199  Mass.  558,  85  N.  E.  858. 

People  v.   Phippin,  70  Mich.  6,  37  N.  W.  888. 

Richardson  v.   State,  47  Ark.  562,  2  S.  W.   187. 

1  Kents'   Commentaries,   462. 

2  Sutherland's  Statutes  and  Statutory  Construction.     (2nd  ed.  by  Lewis), 

sees.  370,  374,  376,  456. 

2.  Ch.  39,  Art.  I,  Ala.  Code,  sec.  1626,  et  sequi. 
Sec.   1435,  Wis.   Code,  et  sequi. 


§  2. — The  Powers  of  Government  in  Relation  to  the  Medical 
Practice  Acts 

The  power  vested  in  Congress  to  enact  legislation  of  this  nature  is 
very  limited,  while  each  of  the  several  state  legislatures  has  the  right 
in  nearly  the  broadest  sense  of  that  term.  A  reason  for  this  may  be 
found  in  the  fact  that  under  the  federal  constitution  governmental 
powers  are  to  be  classed  as  political  and  social.  The  first  are  vested 
chiefly  in  Congress,  while  the  latter  remain  in  large  part  either  in  the 
states  or  in  the  people.3 

Thus  Congress  may  regulate  the  practice  of  medicine,  but  it  may 
do  so  only  in  such  territory  as  is  immediately  subject  to  its  jurisdiction, 
while  the  several  states  are  free  to  legislate  for  themselves  in  such 
matters,  subject  to  the  federal  and  the  local  constitution  alone. 

§  3. — Police  Power  Defined 

Laws  regulating  the  practice  of  medicine  are  enacted  under  what 
is  broadly  termed  the  police  power,  a  phrase  which  it  seems  rather 
impossible  to  limit  in  any  abstract  definition.4 

In  its  broadest  sense,  however,  the  term  "police  power"  may  be 
considered  as  that  general  power  in  government  which,  when  exer- 
cised, tends  to  promote  and  preserve  the  public  welfare.  This  may  be 
attempted  either  by  prohibiting  all  things  hurtful  to  the  comfort,  safety 
and  well-being  of  society,  or,  by  establishing  such  rules  and  regulations 
for  the  conduct  of  all  persons,  and  the  use  and  management  of  all 
property,  as  may  be  conducive  to  the  public  interest.5 

The  "police  power"  is  an  attribute  of  sovereignty  which  exists, 
without  any  reservation  thereof,  in  the  constitution.  It  is  founded  on 
the  duty  of  a  state  to  protect  its  citizens,  and  to  provide  for  the  safety 
and  good  order  of  society.  It  may  be  compared  to  the  right  of  self- 
preservation  in  the  individual,  and  is  an  essential  element  in  all  orderly 
governments.  Upon  it  depend  the  security  of  the  social  order,  the  life 
and  health  of  the  citizen,  the  comfort  of  an  existence  in  a  thickly 
populated  community,  the  enjoyment  of  -private  and  social  life,  and 
the  beneficial  use  of  property.    It  has  been  said  to  be  the  very  founda- 


3.  Stimpson.     Book  I,  Ch.  10;  Book  II,  Ch.  3.     The  American  Constitutions, 

Pp.   60,   106. 
United  States  Constitution,  10th  Amendment. 
Freund,   Police  Power,  fl64,  65. 

4.  Slaughter  House  Cases,  16  Wall.   (U.  S.)   36. 
People  v.  Ewer,  141   N.  Y.  129. 
Commonwealth  v.  Vrooman,  164  Pa.  St.  306. 

5.  License  Cases,  5  How.    (U.   S.)    504. 
Munn  v.  Illinois,  94  U.  S.  113. 

Eastman  v.  State,  109  Ind.  278;  10  N.  E.  97. 


tion  upon  which  our  social  system  rests.  And  it  has  been  sometimes 
termed,  and  not  inaptly,  "the  law  of  overruling  necessity."  It  is 
founded  largely  on  two  old  civil  law  maxims,  "Sic  utere  tuo  ut  alienum 
non  laedas,"  which  may  perhaps  be  co-terminous  with  "Love  thy 
neighbor  as  thyself,"  and  "Salus  populi  est  suprema  lex,"  that  is,  "the 
welfare  of  the  state  is  of  first  importance ."G 

The  "police"  is  the  most  extensive  and  pervading  "power"  of  all 
those  which  exist  in  a  state  by  virtue  of  general  sovereignty.  Under 
it  many  rights  of  a  purely  personal  and  private  character  give  way 
to  the  common  good ;  the  individual,  in  becoming  a  member  of  organ- 
ized society,  must  concede  a  certain  measure  of  authority  over  his 
actions  in  return  for  his  many  privileges.  Thus  in  the  process  of 
development  from  a  rude  state  of  society  to  a  complex  civilization  the 
zone  of  personal  and  private  rights  that  are  beyond  legislative  con- 
trol must  constantly  diminish.7 

A  detailed  examination  of  the  "police  power"  would  not  reveal 
it  as  by  any  means  a  fixed  quantity.  Rather  it  would  seem  to  be  an 
expression  of  the  social,  economic,  and  political  conditions  of  any 
given  era.  Hence,  as  long  as  these  conditions  vary,  this  power  must 
continue  to  be  elastic,  i.  e.,  capable  of  development.  The  essence  of 
this  power  would  seem  to  be,  that  every  individual  must  submit  to 
such  restraints  in  the  exercise  of  his  liberty,  or  of  his  rights  of 
property,  as  may  be  required  to  remove,  or  reduce,  the  danger  of 
the  abuse  of  these  rights  on  the  part  of  those  who  are  unskilled,  care- 
less, or  unscrupulous.8 

A  state  in  exercising  its  police  power  is  but  acting  in  the  nature 
of  "parens  patriae"  for  the  people  within  its  domain.  For  persons 
supposedly  adults  are  frequently  but  children  quite  incapable  of  pro- 
tecting themselves.  And  nowhere  is  this  incapacity  for  self-protec- 
tion more  patent  than  in  the  relationship  existing  between  patient 
and  physician.     Consequently  it  is  in  regard  to  such  occupations  that 


6.  22  A.  &  E.  Encyc.  L.  915,  and  cases. 
Blackstone  IV,  pp.  162-175. 

Cooley,  Const.  Lim.,  Ch.  XVI,  et  sequi. 
Freund,   Police  Power,   Para.  3  et  sequi. 

7.  Parks  v.  State,  159  Ind.  211,  64  N.  E.  862,  59  L.  R.  A.  190. 

Commonwealth  v.  Alger,  7  Cush.    (Mass.)    84. 
Thorpe  v.  Rutland  &  Burlington  Ry.,  27  Vt.  149. 
Gibbons  v.  Ogden,  9  Wh.  (U.  S.)  1,  204. 
License  Cases,  5  How.   (U.  S.)   504. 
New  York  v.  Milne,  11  Pet.  (U.  S.)   102,  139. 
Passenger  Cases,  7  How.  (U.  S.)  283,  424. 

8.  Freund,  Police  Power,  Para.  1,  et  sequi. 


a  state  intervenes  with  its  powers  of  police  to  protect  both  itself  and 
the  persons  who  are  most  likely  to  suffer.0 

§  4. — The  Practice  of  Medicine  and  the  Police  Power 
It  is  to  be  conceded  that  the  police  power  extends  to  the  regula- 
tion of  certain  trades  and  callings  and  most  particularly  those  which 
closely  concern  the  public  health.10  Still,  in  exercising  this  power  a 
legislature  must  take  into  consideration  the  fact  that  each  citizen  has 
the  undoubted  right  to  follow  any  lawful  calling,  business  or  profession 
he  may  select.11  With  this  limitation  then  in  mind  there  is  perhaps  no 
profession  more  properly  open  to  such  regulation  by  a  state  than  that 
which  embraces  the  practitioners  of  medicine.12  Dealing,  as  its  fol- 
lowers do,  with  the  lives  and  health  of  the  people,  and  requiring  for  its 
successful  practice  general  education  and  technical  skill  as  well  as 
good  character,  it  is  obviously  one  of  those  vocations  where  the  power 
of  the  state  may  be  exerted  to  see  that  only  qualified  persons  shall 
undertake  its  responsible  and  difficult  duties.13 

Thus  it  is  that  states  have  interested  themselves  in  the  conserva- 
tion of  public  health  as  a  leading  matter  of  police  control  for  hun- 
dreds of  years.14  At  a  very  early  date  statutes  were  enacted  regulat- 
ing the  admission  to  practice  and  licensing  the  members  of  the  pro- 
fession of  medicine.15  Such  statutes  were  and  are  to-day  primarily 
enacted  for  the  benefit  of  the  people  of  a  state  at  large.  For,  in 
enacting  these  laws,  a  legislature  has  in  mind  the  protection  of  the 


9.  State  v.  Cray  (Vt.),  81  Atl.  450. 

State  v.  Heath,  125  Iowa  585 ;  101  N.  W.  429. 
State  v.  Blumenthal  (Mo.),  125  S.  W.  1188. 

10.  Watson  v.  Maryland,  30  Sup.  Ct.  Rep.  644. 
Chenoweth  v.  State   (Colo.),  135  Pac.  771. 

11.  State  v.  Bair,  112  Iowa  466,  84  N.  W.  532. 

Allopathic  Board,  etc.,  v.  Fowler,  50  La.  Ann.  1358,  24  So.  809. 
Smith  v.  State  (Ala.),  63  So.  28. 

12.  Watson  v.  Maryland,  30  Sup.  Ct.  Rep.  644. 

Parks  v.  State,  159  Ind.  211,  64  N.  E.  862,  59  L.  R.  A.  190. 
People  v.  Phippin,  70  Mich.  6,  37  N.  W.  888. 
State  v.  Bair,  112  Iowa  466,  84  N.  W.  532. 

13.  Watson  v.  Maryland,  30  Sup.  Ct.  Rep.  644. 
State  v.  Bair,  112  Iowa  466,  84  N.  W.  532. 

Parks  v.  State,  159  Ind.  211,  64  N.  E.  862,  59  L.  R.  A.  190. 
People  v!  Phippin,  70  Mich.  6,  37  N.  W.  888. 
Chenoweth  v.  State   (Colo.),  135  Pac.  771. 
Smith  v.  State   (Ala.),  63  So.  28. 

14.  Parks  v.  State,  159  Ind.  211,  64  N.  E.  862,  59  L.  R.  A.  190. 

15.  Bonham's  Case,  8  Coke  107. 

College  of  Physicians  v.  Levett,  1  Ld.  Raym.  472. 

See  Statutes,  3  Henry  VIII,  Ch.  11 ;  14  &  15,  Henry  VIII,  Ch.  5 ;  5  Car.  1; 
Virginia  1639;  Massachusetts  1649;  New  Jersey  1665;  New  York  1760. 
Freund,  Police  Power,  Para.  133. 


people  of  the  state  against  those  not  qualified  for  such  service,  and 
not  the  creation  of  a  medical  monopoly.16 

As  has  been  said,  every  citizen  has  the  right  to  earn  a  living.  But, 
when  a  person  holds  himself  out  to  the  community  as  a  person  skilled 
in  the  science  of  healing,  and  on  that  ground  seeks  the  opportunity 
to  exercise  the  skill  he  claims  to  possess,  his  business  then  becomes 
impressed  with  a  public  character.  He  is,  therefore,  subject  to  a 
reasonable  regulation  in  its  prosecution.  Such  a  regulation  is  not 
an  attempt  to  determine  a  question  of  science.  Nor  is  it  an  attempt 
to  control  the  personal  conduct  of  the  citizen  without  regard  to  his 
opinion.  Nor  yet  is  it  a  matter  in  which  the  public  is  in  no  wise  con- 
cerned. It  is  a  matter  of  very  great  public  concern.  The  legislature 
of  a  state  can  appropriately  determine  under  its  "police  power,"  the 
degree  of  learning  that  should  be  possessed  by  those  who  gain  a  liveli- 
hood by  seeking  to  relieve  the  bodily  ailments  of  others.17 

Thus  the  medical  profession  upon  whose  skill  is  so  much  depend- 
ent the  lives  and  health  of  others  is  very  properly  made  a  matter  of 
legislative  control.  There  is  no  more  natural,  absolute  right  in  a 
person  to  practice  medicine  or  surgery  than  there  is  to  practice  law. 
What  is  claimed  to  be  a  natural  or  absolute  right  is  nothing  more 
than  a  privilege  or  a  right  upon  condition.18  It  would,  therefore,  seem 
that  the  freedom  of  engaging  in  a  business,  or  vocation,  is  not  incon- 
sistent with  its  regulation  as  to  the  method  of  its  conduction,  that  is, 
when  the  regulations  imposed  are  upon  one  of  the  recognized  grounds 
of  the  police  power.19  But  this  freedom  is  impaired,  not  merely  when 
the  right  to  engage  in  a  business  is  absolutely  denied,  but  also  when 
it  is  made  to  depend  upon  conditions  precedent  of  a  burdensome  or 
discriminating  character.  As  regards  the  practice  of  medicine,  how- 
ever, the  restrictions  thus  far  imposed  have  been  uniformly  sustained 
by  the  courts,  excepting,  perhaps,  as  to  technical  points  touching  a 
state  constitution  alone  and  not  really  going  to  the  root  of  the 
matter.20 

On  analysis,  there  are  certain  dominant  features  which  seem  to  be 
included  in  any  law  enacted  to  control  and  regulate  the  practice  of 


16.  Barton  v.  Schmershall  et  al.   (Ida.),  222  Pac.  385. 
State  v.  Bair,  112  Iowa  466,  84  N.  W.  532. 
Singh  v.  State  (Tex.),  146  S.  W.  891. 

17.  Parks  v.  State,  159  Ind.  211,  59  L.  R.  A.  190. 
Allopathic  Board  v.  Fowler,  50  La.  Ann.  1358. 

18.  Allopathic  Board  v.  Fowler,  50  La.  Ann.  1358. 
People  v.  Phippin,  70  Mich.  6,  37  N.  W.  888. 

19.  Freund,  Police  Power,  Para.  492. 

20.  Freund,  Police  Power,  Para.  133,  152-154,  479,  542,  647,  &73. 


medicine.  Nearly  all  these  measures  create  a  board  of  medical  exami- 
ners in  one  form  or  another,  and,  naturally  enough,  with  varying 
powers.  Generally,  it  seems  to  be  the  duty  of  these  boards  to  examine 
into  the  moral  and  mental  fitness  of  the  applicants  desiring  to  prac- 
tice medicine.  To  test  the  applicants  thoroughly,  it  is  prescribed 
usually  that  each  must  submit  to  an  examination  in  the  subjects  funda- 
mental to  a  knowledge  of  the  human  body  and  its  diseases.  The 
boards  are  frequently  allowed  great  discretion  in  refusing  licenses 
but  the  forms  are  specifically  determined.  After  licensure,  the  boards 
must  supervise  the  conduct  of  all  practitioners  and,  for  unprofes- 
sional conduct  and  the  like,  may  suspend  or  revoke  a  practitioner's 
license.  A  mode  of  procedure  for  the  trial  of  such  a  charge  is  some- 
times provided.  The  terms  "practice  of  medicine"  and  "unprofes- 
sional conduct"  are  in  most  statutes  defined  to  some  extent.  Prac- 
ticing contrary  to  the  statute,  as  well  as  other  violations,  are  con- 
stituted misdemeanors  and  fines  are  provided.  These  laws  make 
exceptions  of  various  kinds  to  their  general  terms.  Finally,  certain 
persons  are  often  precluded  from  the  practice  of  medicine ;  some 
by  reason  of  their  failure  to  qualify  ab  initio;  others,  from  their  inher- 
ent nature,  as  corporations,  may  not  qualify  for  licensure.21 

The  provisions  here  cited  are  the  ones  which  most  frequently 
come  into  question  as  to  their  constitutionality,  and  these,  as  has  been 
noted,  have  been  uniformly  upheld.  Possibly  North  Carolina  and 
Kentucky  are  the  only  jurisdictions  where  there  would  seem  to  be 
any  doubt  as  to  the  validity  of  such  acts.  However,  in  view  of  the 
vast  preponderance  of  opinion  favoring  the  validity  of  these  laws 
such  apparent  anachronisms  need  not  be  seriously  considered. 

§  5. — Medical  Practice  Acts  Under  the  Federal  Constitution 

It  has  become  a  fixed  principle  that,  under  the  police  power  inher- 
ent in  the  state,  the  legislature  may  enact  such  reasonable  regulations 
for  the  examination  and  registration  of  physicians,  and  the  practice 


21.  Youngstown  Park  v.  Kessler  (Ohio),  36  L.  R.  A.  (N.  S.)   50. 

Nelson  v.  Dr.  Cook  and  Co.,  Sup.  Ct.  Washington,  February,  1913. 

Ch.  39,  Art.  I,  Ala.  Code,  Sec.  1626,  et  sequi. 

Public  Acts  174  (U.  S.  A.)  for  District  of  Columbia. 

Acts  1897,  Indiana,  p.  255,  amended  1901. 

Ch.  17,  Title  12,  Iowa  Code,  Sec.  2576,  et  sequi. 

Ch.  254  Kansas  Laws  1901,  amended  Ch.  63,  1908. 

Art.  43,  Pub.  Gen.  L.  Md.,  amended,  1892,  1894,  1896,  1902. 

Ch.  344  New  York  Code. 

Ch.  93  Utah  Laws,  1911. 

Ch.  192  Washington  S.  L.  1909  (H.  R.  144). 

Sec.  1435  et  sequi,  Wisconsin  Code. 


of  medicine  and  surgery,  as  it  may  deem  fit,  nor  do  such  laws  violate 
the  federal  constitution.22 

The  authority  of  the  legislature  does  not  end  with  declaring  what 
qualifications  a  person  entering  upon  the  practice  of  the  profession 
must  possess.  Since  the  legislature  has  plenary  power  over  the  whole 
subject,  it  alone  can  be  the  judge  of  what  is  expedient,  both  as  to 
the  qualifications  required  and  as  to  the  method  of  ascertaining  those 
qualifications.  The  only  limit  to  the  legislative  power  in  prescribing 
conditions  to  the  right  to  practice  is  that  they  shall  be  reasonable. 
Whether  or  no  they  are  reasonable  the  courts  must  judge.  As  a 
guide  to  the  court  in  determining  as  to  their  reasonableness  it  is 
required  that  the  conditions  be  adopted  in  good  faith;  that  they  oper- 
ate equally  upon  all  who  desire  to  practice  and  who  possess  the 
required  qualifications;  that  they  be  appropriate  to  the  end  in  view, 
to-wit,  the  protection  of  the  public;  and  that  they  be  attainable  by 
reasonable  study  or  application.  If  these  be  complied  with,  then  the 
fact  that  the  conditions  may  be  rigorous  will  not  render  the  legisla- 
tion invalid.  In  the  enactment  of  legislation  of  this  character,  the 
legislature  may  take  account  of  the  advance  of  learning  and  impose 
new  conditions  and  qualifications  as  increased  knowledge  may  sug- 
gest. And  to  make  such  legislation  effective  one  having  an  established 
practice  and  one  contemplating  practicing  may  be  required  to  con- 
form to  the  same  standard  of  qualification.23 


22.  State  v.  McCrary  (1906  Ark.),  92  S.  W.  775. 

Thompson  v.  Van  Lear,  77  Ark.  506,  92  S.  W.  773,  5  L.  R.  A.  (N.  S.)  588. 

Richardson  v.  State,  47  Ark.  562,  2  S.  W.  187. 

Czarra  v.  Board  of  Medical  Supervisors,  25  App.  D.  C.  443,  33  Wash.  Law 

Rep.  470. 
State  v.  Webster,  150  Ind.  607,  50  N.  E.  750,  41  L.  R.  A.  212. 
People  v.  Reetz,  127  Mich.  87,  86  N.  W.  396. 
State  v.  State  Board  of  Medical  Examiners,  32  Minn.  324. 
State  v.  First  Judicial  District   Court,  Department  No.  2,  26  Mont.  121, 

66  Pac.  754. 
Smith  v.  State  (Ala.),  63  So.  28. 
In  re  Roe  Cheng,  9  New  Mex.  130,  49  Pac.  952. 
People  v.  Fulda,  52  Hun.  65,  4  N.  Y.  Supp.  945. 
State  v.  Marble,  72  Ohio  St.  21,  73  N.  E.  1063. 
Comm.  v.  Wilson,  6  Pa.  Dist.  628,  19  Pa.  Co.  Ct.  521. 
Comm.  v.  Densten,  30  Pa.  Super.  Ct.  631. 

Dent  v.  West  Virginia,  129  U.  S.  114,  9  Sup.  Ct.  Rep.  231,  32  L.  ed.  623. 
Contra. 
Chenoweth  v.  State  (Colo.),  135  Pac.  771. 

23.  Ex  parte  Gerino,  143  Cal.  412. 
Ex  parte  Frazer,  54  Cal.  94. 

People  v.  Boo  Doo  Hong,  122  Cal.  606. 

Ex  parte  McNulty,  77  Cal.  164. 

In  re  Bulger,  In  re  Merrill,  45  Cal.  553. 

Ex  parte  Whitley,  144  Cal.  167. 

Arwine  v.  Board  of  Medical  Examiners   (Cal.),  91  Pac.  319. 

De  Yoe  v.  Superior  Court,  140  Cal.  476. 


The  police  power  of  a  state  is  very  broad  and  comprehensive. 
Consequently  all  kinds  of  restraints  and  burdens  may  be  placed  on 
persons  and  property  thereunder,  and  these  will  be  held  valid  if  their 
object  is  to  secure  the  general  comfort,  health  and  prosperity  of  the 
state.-4  Thus  with  the  practice  of  medicine  and  surgery,  it  being 
a  function  which  concerns  the  comfort,  health,  and  life  of  every  per- 
son, it  is  well-nigh  an  imperative  necessity  that  only  persons  possess- 
ing the  highest  possible  degree  of  skill  and  knowledge  should  be  per- 
mitted to  enter  the  pursuit  thereof.  In  passing  on  the  validity  of  a 
law  regulating  this  practice,  the  argument  that  it  is  bestowing  a  favor 
upon  a  particular  profession  will  not  be  considered  by  the  courts. 
For  they  seem  to  hold  such  laws  to  be  the  exercise  of  one  of  the 
highest  duties  of  a  state,  that  of  protecting  its  citizens  from  injury 
and  harm.24  Still  there  can  be  no  doubt  the  legislature  of  every  state 
should  permit  the  utmost  freedom  of  action,  consistent  with  the  pub- 
lic welfare  as  regards  the  pursuit  of  the  practice  of  medicine.  The 
legislature  should  not,  therefore,  impose  any  restraint  which  the  para- 
mount interest  of  the  community  does  not  demand.25  It  may,  how- 
ever, legitimately  restrain  the  action  or  conduct  of  any  individual  citi- 
zen by  a  general  law,  if  this  be  applicable  alike  to  all.  Such  a  law 
must  also  be  imposed  for  the  purpose  of  promoting  the  comfort,  health 
or  prosperity  of  the  community  at  large.25  Any  state  has  a  right, 
under  its  general  police  power,  to  pass  laws  placing  individuals  under 
restraint  in  the  exercise  of  any  business,  calling  or  profession.  This 
power  has  been  universally  recognized  and  has  been  held  by  the  courts 


23. — Continued. 

Iowa  Ec.  Med.  Assn.  v.  Schrader,  20  L.  R.  A.  259. 

Dent  v.  West  Virginia,  129  U.  S.  114. 

State  Board  v.  Fowler,  50  La.  Ann.  1358. 

Scholle  v.  The  State,  90  Md.  729,  50  L.  R.  A.  411. 

People  v.  Fulda,  52  Hun.  65,  4  N.  Y.  Supp.  945. 

State  v.  Davis,  92  S.  W.  407. 

Antle  v.  State,  6  Tex.  Crim.  App.  302. 

Ex  parte  Grenall,  153  Cal.  769. 

Ex  parte  Bohannon  (Cal.),  Ill  Pac.  1039. 

Driscoll  v.  Commonwealth,  93  Ky.  393,  20  S.  W.  431. 

Eastman  v.  State,  109  Ind.  282. 

State  v.  Johnson  (Kan.),  114  Pac.  390. 

Brooks  v.  State,  88  Ala.  122,  6  So.  902. 

Richardson  v.  State,  47  Ark.  562,  2  S.  W.  187. 

Bragg  v.  State,  134  Ala.  165,  33  So.  767,  59  L.  R.  A.  925. 

Smith  v.  State  (Ala.),  63  So.  28. 

Spurgeon  et  al.  v.  Rhodes,  167  Ind.  1,  78  N.  E.  228. 

State  v.  Dent,  25  W.  Va.  1. 

State  v.  Chapman,  69  N.  J.  Law  464,  55  Atl.  94. 

Chenoweth  v.  State  (Colo.),  135  Pac.  771. 

Graeb  v.  State  (Colo.),  135  Pac.  776. 

24.  Eastman  v.  State,  109  Ind.  282. 

25.  State  v.  Dent,  25  W.  Va.  1. 


10 

to  be  constitutional  and  valid.25  While  all  men  have  a  right  to  acquire 
property,  and  of  the  means  thereto,  still  the  methods  employed  toward 
obtaining  this  end  must  be  lawful  means.  One  cannot  acquire  prop- 
erty by  stealth  or  robbery,  for  in  so  doing  he  infringes  on  the  rights 
of  others.  Therefore,  a  person  cannot  have  a  right  to  acquire  prop- 
erty by  the  practice  of  medicine  if  he  has  no  qualifications  to  prac- 
tice medicine,  since  in  attempting  to  do  so  he  destroys  the  health  of 
others  in  violation  of  the  law.25  Hence  it  is  that  a  legislature  has  the 
right  to  declare  that  one  shall  not  acquire  property  by  the  practice 
of  medicine  unless  he  possess  the  requisite  qualifications  and  can  thus 
assure  the  community  that  he  will  not  destroy  the  health  of  others.25 
Any  restrictions  or  qualifications  placed  on  applicants  to  the  practice 
of  medicine  and  surgery  must  be  appropriate  to  the  profession,  and 
attainable  by  reasonable  study  or  application.  They  must  also  be 
imposed  equally  upon  all  persons  of  like  sex,  age,  and  condition.26 

As  has  been  said,  in  construing  these  laws,  courts  have  as  a  guide 
the  rule  that  they  must  be  reasonable,  necessary,  and  not  unduly 
oppressive.  But  it  is  said  that,  in  addition,  a  court  in  deciding  cases 
involving  the  exercise  of  the  police  power  reflects  the  state  of  pub- 
lic opinion,  and  that  therefore  measures  looking  to  the  public  wel- 
fare are  no  longer  tested  by  the  strict  letter  of  the  Constitution,  but 
rather  by  public  opinion,  which,  keeping  pace  with  an  advancing 
civilization,  is  a  progressive  factor  that  calls  for  an  enlarged  invasion 
of  private  rights  for  the  public  good.  And  thus  it  is  that  courts  are 
prompted  to  give  greater  elasticity  to  constitutional  limitations,  as 
well  as  because  it  is  thought  that  in  flexibility  of  construction  lies 
the  possibility  of  progress  and  the  vitality  of  the  Constitution.27 

While  all  this  may  be  true,  still  a  court  ought  not  to  be  bound  by 
an  alleged  expression  of  public  opinion  as  evidenced  by  a  hastily  con- 
sidered legislative  enactment.  A  court  should  be  vouchsafed  the 
opportunity  of  scrutinizing  carefully  each  law  that  comes  before  it 
for  the  purpose  of  determining  whether  or  no  means  provided  in  a 
given  statute  will  effectuate  the  desired  end. 

For  example,  a  Minnesota  statute  regulating  barbers  required  that 
all  persons  before  entering  the  trade  should  take  a  preparatory  course 
extending  over  three  years.     Before  licensure,  each  applicant  was  to 


26.  Dent  v.  West  Virginia,  129  U.  S.  114,  32  L.  ed.  623,  9  Sup.  Ct.  Rep.  231. 

27.  Dade  v.    United    States,    Court   of   Appeals   of   the   District   of    Columbia, 

No.  2466,  decided  Feb.  25,  1913. 
Smith  v.  State  (Ala.),  63  So.  28.  •  • 

But  see 

Chenoweth  v.  State  (Colo.),  135  Pac.  771. 
Graeb  v.  State  (Colo.),  135  Pac.  776. 


11 

be  examined,  among  other  things  in  his  knowledge  of  face  and  of 
skin  diseases.  It  was  admitted  that  the  chief  danger  to  customers  lay 
in  unclean  tools  and  yet  nothing  was  done  to  enforce  sanitary  pre- 
cautions in  this  regard.  The  Minnesota  Supreme  Court  held  the  law 
valid.28 

From  such  a  situation  it  would  apparently  follow  that  to  prevent 
an  abuse  of  the  police  power  for  the  alleged  protection  of  health,  or 
safety,  or  the  alleged  prevention  of  fraud,  the  courts  must  be  allowed 
to  judge  whether  restrictive  measures  have  really  these  ends  in  view. 
A  remote  and  slight  danger  should  not  be  recognized  as  a  sufficient 
ground  of  restriction.  A  legislature  should  not  be  permitted  to  run 
riot,  enacting  into  laws  the  ideals  of  a  theorist  no  matter  how  wise 
and  beneficent  they  may  seem  to  be.  For,  what  is  termed  the  voice 
of  the  people  is  not  always  the  will  of  God.  Idealistic  legislation  of 
this  nature  is  nearly  always  uneconomical  and  unjust.  It  would  there- 
fore seem  that  such  laws  should  be  held  unconstitutional.29 

§  6. — The  Constitutionality  of  Boards  of  Medical  Examiners; 
The  Power  to  Create  Such  Boards 

It  being  well  recognized  that  a  state  may  enact  laws  requiring 
practitioners  of  medicine  and  the  like  to  conform  to  certain  conditions 
for  the  protection  of  the  health  of  its  citizens  it  follows  that  the  state 
may  also  devise  a  means  of  securing  conformity  to  these  condi- 
tions.30 To  this  end  a  legislature  may  create  and  establish  a  state  board 
of  medical  examiners.31  Courts  cannot  control  the  selection  of  these 
agencies  by  a  legislature.  It  is  impossible  for  a  state  to  supervise 
this  professsion  to  the  best  advantage  otherwise  than  by  such  a  dele- 
gation of  authority.  It  is  essential  that  such  authority  be  granted  to 
men  well  qualified  to  pass  on  the  various  requisites  that  may  be  made 
conditions  precedent  to  issuance  of   a  license  to  practice  medicine. 


28.  State  v.  Zeno,  79  Minn.  80,  48  L.  R.  A.  88. 
See  State  v.  Sharpless  (Wash.),  71  Pac.  737. 

29.  Freund,  Police  Power,  Para.  494. 
Smith  v.  State  (Ala.),  63  So.  28. 
Chenoweth  v.  State  (Colo.),  135  Pac.  771. 

30.  Allopathic  State  Board  v.  Fowler,  SO  La.  Ann.  1358,  24  So.  809. 

State  ex  rel  Powell  v.    State   Board,  32  Minn.  324,  50  Am.  Rep.  575,  20 

N.  W.  238. 
State  v.  Bair,  112  la.  466,  84  N.  W.  532. 
State  Board  of  Health  v.  Roy,  22  R.  I.  538,  48  Atl.  802. 
Meffert  v.  Packert  et  al.,  195  U.  S.  625,  affirming  Meffert  v.  State  Board, 

66  Kan.  710,  72  Pac.  247. 
Green  v.  Hodges  (Kan.),  138  Pac.  605. 
Freund,  Police  Power,  Para.  546. 

31.  Allopathic  State  Board  v.  Fowler,  50  La.  Ann.  1358,  24  So.  809. 
State  v.  Bair,  112  la.  466,  84  N.  W.  532. 


12 

Hence,  medical  men  usually  make  up  the  personnel  of  a  board.  These 
may  be  chosen  in  a  number  of  ways.  Power  may  be  given  the  Gov- 
ernor to  appoint  a  certain  number  of  efficient  men,  by  and  with  the 
advice  of  the  senate.  Or  the  several  state  societies  may  select  cer- 
tain of  their  number  and  recommend  them  to  the  Governor  for  appoint- 
ment to  the  board.  However  it  be  done,  no  question  can  be  raised 
as  to  its  constitutionality,  generally  speaking.32  Thus,  it  would  not  be 
objectionable  if  the  numbers  be  chosen  from  but  two  of  the  state 
societies  and  other  be  ignored,33  or  if  a  Governor,  having  but  the  nom- 
inating power,  appoints  the  members  of  a  board  and  fails  to  gain  the 
confirmation  of  the  Senate.34  This  is  because  a  state  is  bound  only  to 
provide  a  means  whereby  all  applicants  may  receive  like  treatment.  A 
court  may  not  condemn  any  such  system,  when  used,  simply  because  it 
may  work  out  unfairly  and  because  the  board  might  not  be  entirely  free 
from  prejudices.  A  law  is  not  discriminatory  which  authorizes  the 
creation  of  a  board  and  which  does  not  make  mandatory  the  recognition 
of  all  schools  and  sects.  For  such  a  law  is  not  recognizing  any  par- 
ticular school  as  contradistinguished  from  another ;  nor  is  it  bestowing 
special  privileges  on  a  few  to  the  detriment  of  the  many.  Rather  it  is 
casting  a  burden  upon  those  so  chosen  to  act  in  the  interests  of  the  state 
and  for  the  general  welfare  of  the  people.  It  is  simply  a  means 
whereby  there  may  be  evolved  the  greatest  possible  degree  of  effi- 
ciency.35 

§  7. — Medical  Examining  Boards  and  the  Separation  of  Powers 
The  several  constitutions,  state  and  federal,  provide  for  a  "sepa- 
ration of  power"  into  three  governmental  departments  —  Legislative, 
Executive  and  Judicial.  Now  because  of  this  arrangement  of  Gov- 
ernment it  has  been  urged  that  a  legislature,  in  vesting  a  medical 
board  with  power  to  revoke  licenses,  is  creating  an  administrative 
body  with  judicial  powers,  and  this  contrary  to  the  constitution.36 

A  license  to  practice  medicine  when  granted  is  said  to  constitute 
a  vested  right.  And  it  is  urged  that  such  a  right  should  not  be 
interfered  with,  except  on  a  proper  hearing.     Hence  the  proposition 


32.  See  cases  Note  30,  ut  supra. 

Driscoll  v.  Comm,  93  Ky.  393,  20  S.  W.  431. 

33.  Allopathic  Board  v.  Fowler,  50  La.  Ann.  1358. 

34.  Brown  v.  People,  11  Colo.  109,  17  Pac.  104. 

35.  See  cases  cited  Note  30,  ut  supra. 
Brown  v.  People,  11  Colo.  109,  17  Pac.  104. 
Driscoll  v.  Commonwealth.  93  Ky.  393,  20  S.  W.  431. 
State  v.  Call,  121  N.  C.  646,  28  S.  E.  517. 

36.  Freund,  Police   Power,   Para.  546   (note). 

Stimson,  Constitutions,  Book  II,  1,  Book  III,  1,  U.  S.  Const.,  I,  1. 


13 

is  advanced  that  a  power  of  revocation  should  not  he  conclusively 
vested  in  an  "administrative  body,"  at  least  not  without  a  right  of 
appeal  to  the  courts  being  specifically  provided  for. 

It  is  further  argued  that  a  license  to  practice  medicine  is  a  valu- 
able personal  right  and  is  property  and  that  to  deprive  a  citizen  of 
such  a  right — as  by  a  revocation  of  his  license — is  an  exercise  of 
judicial  power.  Now  this  power,  it  is  claimed,  cannot  be  vested  in 
any  administrative  body,  for  a  legislature  cannot  itself  exercise  the 
power,  hence  it  cannot  be  delegated  to  a  board. 

But  under  the  view  of  the  majority  it  would  seem  entirely  com- 
petent for  a  legislature  to  confer  on  a  board  this  power  to  revoke 
licenses  in  its  discretion.37 

And  it  would  seem  that  the  majority  base  their  opinion,  in  part, 
on  the  fact  that  under  the  police  power  a  question  of  qualification 
may  be  raised  continually  de  novo.  That  is,  a  person  once  qualified 
to  practice  medicine  does  not  necessarily  always  remain  so,  and  hence 
may  be  subjected  to  a  "continuing  regulation."  Medical  boards  also 
find  a  parallel  in  the  boards  of  equalization  which  for  purposes  of 
taxation  determine  the  value  of  property.  Here  is  a  taking  of  property 
without  judicial  process,  yet  such  an  exercise  of  power  has  been  uni- 
formly upheld.  The  powers  given  the  medical  boards,  being  com- 
parable, may  be  similarly  held  valid.  Furthermore,  such  boards  are 
neither  administrative  nor  judicial,  but  partake  of  each  and  are  there- 
fore termed  quasi-judicial.38  Moreover,  such  an  exercise  of  power  as 
the  revocation  of  a  license  does  not  properly  belong  to  the  judicial 
department  of  government,  but  the  determination  of  such  questions  as 
the  fitness  of  a  person  to  practice  or  to  continue  in  the  practice  of 
medicine  may  constitutionally  be  and  is  very  properly  devolved  upon 
boards  composed  of  experts  in  that  particular  occupation.39 

Nor  need  a  statute  in  creating  these  medical  boards  and  in  con- 
ferring certain  powers  upon  them  necessarily  provide  for  a  rehearing 
before  a  judicial  tribunal  to  be  constitutional.  It  is  sufficient  if 
provision  be  made  for  a  hearing  of  some  nature  before  the  board; 
but  a  statute  must  not  preclude  an  appeal  to  a. court  when  desired. 


37.  State  ex  rel  Chapman  v.  Board,  34  Minn.  387,  26  N.  W.  123. 
Traer  v.  Board,  106  Iowa  559. 

Meffert  v.  Board  (Kan.)  72  Pac.  247,  and  cases  cited  therein. 
People  v.  McCoy,  125  111.  289. 

38.  People  v.  Hasbrouck,  11  Utah  291,  39  Pac.  918. 
Spurgeon  v.  Rhodes,  167  Ind.  1,  78  N.  E.  228. 

39.  People  v.  Hasbrouck,  11  Utah,  291,  39  Pac.  918. 

State    ex    rel    Powell    v.    State    Board,    32    Minn.   324,    50   Am.   Rep.   575, 

20  N.  W.  238. 
Mathews  v.  Hedland   (Neb.),  119  N.  W.  17. 


14 

With  this  system  applied  any  person  deeming  himself  injured  may 
always  apply  to  the  nearest  court  of  competent  jurisdiction.  For 
it  is  a  function  of  all  such  courts  to  hear  and  right  all  grievances 
which  may  be  properly  laid  before  them.40 

§  8. — Medical  Boards  and  the  Validity  of  their  Powers 
A  legislature  may  within  its  limitations  vest  in  a  board  of  medical 
examiners  the  power  to  determine  as  to  the  mental  and  moral  fitness 
of  an  applicant.41 

Thus,  a  board  may  require  an  applicant  to  present  a  diploma  from 
a  medical  school  and  that  he  submit  himself  to  an  examination,  and 
the  like.  Such  an  exercise  of  power  cannot  be  criticised.42  For  this 
is  an  application  of  the  powers  of  police  which  a  state  cannot,  as  such, 
exercise.  An  agent  is  essential  and  so  long  as  there  is  no  discrimina- 
tion or  undue  partiality  shown  such  a  delegation  of  authority  cannot 
be  attacked  on  the  grounds  of  constitutionality.43 

Again,  the  legislature  has  the  same  power  to  require  as  a  con- 
dition of  the  right  to  practice  the  profession  that  the  petitioner  shall 
be  possessed  of  the  qualifications  of  honor  and  a  good  moral  char- 
acter as  it  has  to  require  that  he  shall  be  learned  in  the  profession.44 
Hence  a  board  may  refuse  to  issue  a  license  to  an  applicant  who  lacks 
the  requisite  moral  qualifications  as  well  as  to  those  who  fail  to  pass 
the  necessary  test  as  to  their  knowledge  of  their  profession.  Such 
applicants  must  be  given  an  opportunity,  however,  to  be  heard  in 
their  own  defense.45  And  any  statute  granting  a  power  to  pass  on 
such  matters  should  at  least  indicate  to  the  board  that  notice  of  the 
charge  made  and  a  hearing  must  be  given  the  accused.  These  points 
having  been  given  due  consideration,  there  can  be  no  doubt  but  the 


40.  United  States  v.  Custis  et  al.  (D.  C),  33  Wash.  Law  Rep.  396. 
Dent  v.  West  Virginia,  129  U.  S.  114. 

Reetz  v.  Michigan,  188  U.  S.  505. 
Jacobson  v.  Massachusetts,  197  U.  S.  11. 
Lieberman  v.  Van  De  Carr,  199  U.  S.  552. 
Yick  Wo  v.  Hopkins,  118  U.  S.  356. 
State  Board  v.  People,  20  111.  App.  457. 
Spelling,  Injunctions,  2d  ed.,  Sec.  1433. 

41.  State  ex  rel  Powell  v.  State  Board,  32  Minn.  324,  50  Am.  Rep.  575,  20 

N.  W.  238. 
State  v.  Bair,  112  Iowa  466,  84  N.  W.  532. 

42.  State  v.  Call,  121  N.  C.  646. 
Driscoll  v.  Commonwealth,  93  Ky.  393. 

43.  State  v.  Bair,  112  la.  466,  84  N.  W:  532. 

44.  State  ex  rel  Powell  v.  State,  32  Minn.  324. 
State  v.  State,  34  Minn.  387. 

45.  Smith  v.  Board  (Iowa),  117  N.  W.  1116. 


15 

right  to  so  regulate  the  practice  of  medicine  falls  within  the  police 
power  and  would  therefore  be  valid.4'1 

As  the  board  may  refuse  to  issue  a  license  to  a  citizen  of  its  own 
state,  so  it  may  likewise  refuse  to  license  citizens  from  any  other 
states.  This  is  true,  even  though  such  a  person  be  a  licensed  prac- 
titioner under  the  laws  of  the  foreign  state,  nor  is  this  discriminat- 
ing against  the  citizens  of  the  several  states.47 

Finally  these  boards  may  be  given  power  to  supervise  the  prac- 
tice of  medicine  and  to  suspend  or  revoke  licenses  for  improper  con- 
duct. The  exercise  of  this  authority  has  sometimes  been  termed  the 
power  of  continuing  regulation.48  Such  an  exercise  of  power  has 
been  quite  uniformly  held  not  to  contravene  those  constitutional  guar- 
antees "that  no  one  shall  be  deprived  of  life,  liberty  or  property, 
unless  by  the  judgment  of  his  peers,"  or  "by  the  law  of  the  land,"  or 
"be  denied  the  equal  protection  of  the  laws."49 

§  9. — The  Power  of  a  Board  to  Revoke  a  License  for  Cause 

As  has  often  been  said,  the  right  to  practice  medicine  is  a  valuable 
right  which  cannot  be  taken  away  without  due  process  of  law.  It 
has  also  been  said  that  two  of  the  essential  elements  of  due  process 
are  notice  and  the  opportunity  to  defend.  Now  statutes  regulating 
the  practice  of  medicine  clearly  fall  within  the  police  power  of  a 
state,  nevertheless  even  such  statutes  cannot  be  permitted  to  over- 
ride the  constitution.  Consequently,  when  a  valuable  property  right, 
such  as  a  license  to  practice  medicine,  is  to  be  disturbed  thereunder, 
those  provisions  of  the  constitution  prohibiting  the  taking  of  property 
without  due  process  and  the  like  are  paramount.  The  law  must, 
therefore,  provide  to  give  the  accused  notice  of  the  charge  brought 
against  him  and  an  opportunity  to  defend  himself.50  Although  a 
statute  may  not  expressly  provide  for  notice,  it  will  not  be  held  uncon- 


46.  See  cases  cited  Note  1,  ut  supra. 

Barton  v.  Schmershall  et  al.   (Ida.),  222  Pac.  385. 
Smith  v.  Board  (Iowa),  117  N.  W.  1116. 

47.  People  v.  Hasbrouck,  11  Utah  291,  39  Pac.  918. 

48.  Hawker  v.  New  York,  170  U.  S.  189. 
Reetz  v.  Michigan,  188  U.  S.  505. 
Meffert  v.  Packer  et  al,  195  U.  S.  625. 

Chenoweth  v.  State  (Colo.),  135  Pac.  771. 

49.  Mathews  v.  Hedland  (Neb.),  119  N.  W.  17. 

State  Board  of  Health  v.  Roy,  22  R.  I.  538,  48  Atl.  802. 

Smith  v.  State  Board  of  Medical  Examiners   (Iowa),  117  N.  W.  1116. 

Spurgeon  et  al.  v.  Rhodes,  167  Ind.  1,  78  N.  E.  228. 

Chenoweth  v.  State  (Colo.),  135  Pac.  771. 

50.  Smith  v.  State  Board  of  Medical  Examiners  (Iowa),  117  N.  W.  1116. 
Chenoweth  v.  State   (Colo.),  135  Pac.  771. 


16 

stitutional  or  invalid  if  the  requirement  of  notice  may  be  fairly 
implied  therefrom.  In  some  cases,  it  is  said  that  notice  is  to  be 
implied  from  the  very  fact  that  it  is  a  constitutional  requirement 
irrespective  of  particular  provisions  in  the  statutes  apparently  con- 
templating that  notice  is  to  be  given.51  A  suspension  or  revocation 
of  a  license  is  generally  had  for  what  is  termed  unprofessional  con- 
duct. In  nearly  all  the  states,  this  term  includes  any  act  in  the 
nature  of  a  felony  or  that  is  grossly  immoral  or  such  as  would 
deceive  or  tend  to  deceive  the  ignorant  and  the  like.  The  revocation 
of  a  license  on  such  grounds  does  not  violate  any  provision  in  the  fed- 
eral constitution.52 

The  provisions  of  these  acts  would  seem  to  indicate  that  such 
investigations  were  never  intended  to  be  carried  on  in  observation  of 
the  technical  rules  of  evidence.  On  the  contrary  it  would  seem  that  the 
legislative  intent  in  such  cases  is  to  adopt  a  summary  proceeding  by 
which  the  morals  of  the  people  and  the  dignity  of  the  profession  might 
be  protected53  against  the  flotsam  and  jetsam  current  in  any  walk  in 
life  and  without  being  embarrassed  by  the  technical  rules  of  proceed- 
ings at  law.  It  is  generally  deemed  sufficient  if  the  accused  be  notified 
and  have  a  hearing.  If  this  be  done  the  findings  of  the  board  are  con- 
clusive on  the  court.54 

Depriving  a  physician  of  his  right  to  practice  medicine  other- 
wise than  by  a  judgment  or  forfeiture  by  a  judicial  tribunal  does  not 
violate  Amendment  14  of  the  federal  constitution  as  to  depriving  a 
person  of  his  property  without  due  process  of  law.  For  due  process  of 
law  is  not  necessarily  judicial  proceedings.  The  procedure  to  be  found 
in  these  statutes  is  for  the  purpose  of  exercising  the  police  powers  of 
the  state  to  the  best  advantage.  And  although  such  a  power  when 
exercised  may  interfere  with  or  restrict  a  person's  enjoyment  of  his 
property,  yet  it  was  never  held  that  the  exercise  of  the  police  power 
must  be  by  judicial  proceedings  in  court  in  order  to  constitute  due 
process  of  law.  No  distinction  can  be  taken  between  refusing  to  grant  a 
license  and  revoking  one  already  granted.  Both  acts  are  an  exercise 
of  the  police  power  and  their  object,  is  identical,  viz.,  to  exclude  the 


51.  Smith,  v.  State  Board  of  Medical  Examiners  (Iowa),  117  N.  W.  1116. 

52.  Spurgeon  et  al.  v.  Rhodes,  167  Ind.  1,  78  N.  E.  228. 
Chenoweth  v.  State  (Colo.),  135  Pac.  771. 

53.  California  Senate  Bill  813,  Acts  1913. 
Ch.  17,  Title  12,  Iowa  Code,  Sec.  2578. 
Ch.  344  New  York  Code,  Para.  11. 
Art.  43  Maryland  Laws,  Sec.  65. 

But  see 

Ch.  422  Wisconsin  Code,  Sec.  1436e,  et  sequi. 

54.  Meffert  v.  State  Board,  66  Kan.  710,  72  Pac.  247. 


17 

incompetent  and  unworthy  from  this  profession.0"'  A  state  may  con- 
fer on  a  hoard  the  power  to  revoke  a  license  if  it  should  he  made  to 
appear  that  the  license  should  not  have  been  issued  or  if  for  any 
reason  the  holder  thereof  since  its  issuance  has  become  disqualified. 
Generally  speaking,  statutes  authorizing  boards  of  medical  exam- 
iners to  refuse  and  revoke  licenses  under  the  circumstances  set  forth 
in  these  statutes,  confer  on  these  boards  a  discretionary  power.  This 
is  at  least  true  in  passing  on  questions  of  fact  presented  to  the  board 
for  their  determination.  That  is,  the  board  must  exercise  its  judg- 
ment in  determining  whether  or  not  the  facts  presented  are  sufficient 
to  warrant  a  refusal  of  a  license  or  a  revocation  thereof  and  the 
like.50  If  any  person  be  wronged  in  any  such  exercise  of  discre- 
tionary power,  such  wrong  may  be  corrected  in  the  courts  of  the  state ; 
but  the  courts  will  not  interfere  with  nor  disturb  the  discretionary 
power  conferred  on  a  board.57 

§    10. — The  Term   "Unprofessional  Conduct"   Is  Not  Void  for 

Uncertainty 

It  is  maintained  by  some  authorities  that  a  statute  permitting  a 
revocation  of  a  license  for  "unprofessional  conduct"  is  void  for 
uncertainty  in  that  the  defendant  is  not  sufficiently  advised  as  to 
the  nature  of  his  offense  when  indicted  under  such  language.58  This 
point  is  raised  under  the  Sixth  Amendment  to  the  federal  constitution 
and  under  similar  language  in  several  state  constitutions.  It  has 
been  held  that  the  sixth  amendment  to  the  federal  constitution  does 
not  apply  to  the  states  but  only  to  the  enactments  of  Congress.59 

The  terms  "unprofessional  conduct"  or  "gross  unprofessional  con- 
duct" and  the  like  are  said  to  have  no  exact  nature  as  an  offense 
and  only  to  constitute  matter  for  mere  speculation.  Thus  the  under- 
lying question  involved  in  all  cases  that  may  arise  under  such  language 


55.  State  ex  rel  Chapman  v.  State,  34  Minn.  387,  26  N.  W.  123. 
Chenoweth  v.   State  (Colo.),  135  Pac.  771. 

56.  Barton  v.  Schmershall  et  al.  (Ida.),  222  Pac.  385. 

57.  Barton  v.  Schmershall  (Ida.),  222  Pac.  385. 
Spelling  on  Injunctions,  2d  ed.,   Sec.  1433. 
Dent  v.  West  Virginia,  129  U.  S.  114. 
Chenoweth  v.  State  (Colo.),  135  Pac.  771. 
Reetz  v.  Michigan,  188  U.  S.  505. 

58.  Czarra  v.  Board,  25  App.  D.  C.  443,  33  Wash.  Law  Rep.  471. 
Matthews  v.  Murphy,  23  Ky.  750,  63  S.  W.  785,  54  L.  R.  A.  415. 
See  also 

State  ex  rel  Powell  v.  State  Medical  Examining  Board,  32  Minn.  324,  50  Am. 

Rep.  575,  20  N.  W.  38. 
Kennedy  v.   State  Board  of  Registration  in  Medicine,  145  Mich.  241,   108 

N.  W.  730. 

59.  Spurgeon  v.  Rhodes,  167  Ind.  1,  78  N.  E.  228. 


18 

would  seem  to  be  whether  the  courts  can  uphold  and  enforce  a 
statute  whose  broad  and  indefinite  language  may  apply  not  only  to 
a  particular  act  about  which  there  would  be  little  or  no  difference  of 
opinion  but  equally  to  others  about  which  there  might  be  radical 
differences.  Because  in  upholding  such  an  act  there  might  devolve 
upon  the  tribunals  charged  with  the  enforcement  of  the  law  the  exer- 
cise of  an  arbitrary  power  of  discriminating  between  the  several 
classes  of  acts.  Also  a  board  authorized  to  enforce  an  act  in  which 
such  broad  language  is  used  would,  it  is  claimed,  enable  it  to  accuse 
a  physician  of  almost  any  act  as  unprofessional.  And  the  defendant 
would  from  this  term  be  unable  to  formulate  a  proper  defense  not 
knowing  with  what  offense  he  was  charged.  And  all  this  it  is 
claimed,  is  contrary  to  the  fundamental  principles  underlying  our 
organic  acts.60 

It  would  seem,  however,  that  this  construction  takes  the  words 
too  broadly.  For  it  is  clearly  against  public  policy  to  place  any  such 
arbitrary  power  anywhere  much  less  in  a  mere  medical  board.61 
"Grossly  immoral  and  unprofessional  conduct"  excludes  the  idea 
that  a  license  may  be  revoked  for  trivial  reasons  or  for  a  violation 
of  what  might  be  regarded  as  mere  professional  ethics.  Hence  such 
language  is  not  too  general  under  which  to  lay  an  indictment.  And 
while  a  great  many  statutes  may  define,  with  great  nicety,  the  mean- 
ing of  this  term,  yet  it  would  seem  almost  unnecessary,  for  it  may 
be  urged  that  the  words  "unprofessional  conduct"  carry  with  them 
a  sufficient  meaning  to  inform  anyone  of  the  charge  brought 
against  him.62 

In  the  face  of  these  authorities  it  would  seem  that  the  position 
taken  by  the  courts  of  California  and  Kentucky  were  untenable.  And 
further,  the  affirmation  of  Meffert  v.  Packert  by  the  United  States 
Supreme  Court  would,  in  effect,  negative  the  opinion  of  the  Court 
of  Appeals  of  the  District  of  Columbia,  although  the  Meffert  case 
did  not  turn  on  quite  the  same  point.  Then  again,  in  nearly  all 
these  cases,  it  might  seem  that  the  court  was  given  to  a  great  deal 
of  speculation  in  trying  to  put  a  strained  construction  on  the  language 
in  question.     It  would  have  been  a  great  deal  simpler  to  hold  the 


60.  Czarra  v.  Board,  25  App.  D.  C.  443,  33  Wash.  Law  Rep.  470. 

61.  United  States  v.  Custis  et  al.,  38  Wash.  Law  Rep.  396. 

62.  Aiton  v.  Board  of  Medical  Examiners  of  Arizona,  114  Pac.  962. 
Meffert  v.  Packert  et  al.,  66  Kan.  710. 

Same  case    (aff.),   195  U.  S.  625. 
State  v.  Board,  34  Minn.  391. 


19 

language   sufficient  and   to   allow   a   review   in   cases   in   which   there 
might  be  a  palpable  miscarriage  of  justice.™ 

§    11.    (a)    Medical  Practice  Acts  and  the   Privilege  and 
Immunity  Clauses 

Section  2,  Article  4  of  the  Federal  Constitution  provides  that 
"the  citizens  of  each  state  shall  be  entitled  to  all  the  privileges  and 
immunities  of  citizens  in  the  several  states."  Generally  speaking,  this 
does  not  apply  to  Medical  Practice  Acts  which  apparently  make 
exceptions  favoring  the  citizens  of  a  given  state.'14 

A  statute  requiring  a  diploma  from  a  reputable  college  and  an 
examination  of  all  candidates  from  a  foreign  state  but  excepting 
students  matriculated  at  any  college  in  the  state  is  not  violative  of 
this  provision.05  For  such  a  restriction  does  not  constitute  class 
legislation,  the  test  being  whether  or  no  the  exercise  of  the  medical 
profession  is  made  any  less  perilous  by  such  a  provision.  Now  it 
would  seem  incontrovertible  that  one  state  may  protect  its  citizens 
more  thoroughly  than  other  states.  Hence  to  admit  candidates  from 
these  states  on  an  equal  footing  with  its  own  students  would  be  to 
imperil  the  health  and  safety  of  its  own  citizens,  and  this  any  state 
may  decline  to  do.  It  would  therefore  be  a  proper  classification  and 
valid  under  Section  2,  Article  4  of  the  Federal  Constitution.06 

Nor  is  differentiating  between  established  practitioners  within 
the  state  and  those  who  may  come  in  from  another  state  invalid.07 
For  such  a  provision  is  not  directed  against  the  citizens  of  another 
state  as  such.  No  privileges  are  being  withheld  which  are  not  being 
withheld  from  all  who  are  similarly  situated.  And  hence  such  a 
classification  cannot  be  in  contravention  of  that  provision  in  the  Fed- 
eral Constitution  which  provides  that  "the  citizens  of  each  state  are 
entitled  to  the  privileges  and  immunities  of  the  citizens  of  the  sev- 
eral states.68 

§  11  (b). — Similar  to  this  "privilege  and  immunity"  clause  is 
that  part  of  Section  1  of  the  Fourteenth  Amendment  stipulating  that 
"no  state  shall  make  or  enforce   any  law   which  shall  abridge  the 


63.  Kennedy  v.  State  Board  of  Registration,  145  Mich.  241,  108  N.  W.  730. 

64.  Harding  v.  People,  10  Colo.  387,  15  Pac.  727. 

State  ex  rel  Kellogg  v.  Currans  et  al.,  Ill  Wis.  431,  87  N.  W.  561. 
People  v.  Phippen,  70  Mich.  6,  37  N.  W.  888. 
Wolf  v.  State  Board  (Minn.),  123  N.  W.  1074. 
People  v.  Hasbrouck,  11  Utah  291,  39  Pac.  918. 

65.  State  ex  rel  Kellogg  v.  Currans  et  al.,  Ill  Wis.  431,  87  N.  W.  561. 

66.  State  ex  rel.  Kellogg  v.  Currans  et  al.,  Ill  Wis.  431,  87  N.  W.  561. 

67.  People  v.  Hasbrouck,  11  Utah  291,  39  Pac.  918. 

68.  Federal  Constitution,  Article  IV,  Sec.  2. 


20 

privileges  or  immunities  of  citizens  of  the  United  States."  The  dif- 
ference being  that  the  one  is  to  protect  the  citizens  of  the  various 
states  while  the  second  is69  for  the  protection  of  the  citizens  of  the 
United  States.  And  it  is  well  settled  that  the  right  to  practice  medi- 
cine without  regulation  is  not  one  of  the  privileges  and  immunities 
incident  to  citizenship  of  the  United  States.70 

The  fact  that  a  statute  apparently  discriminates  and  allows  cer- 
tain seeming  exemptions  is  no  constitutional  ground  for  objection  as 
being  discriminatory:  as,  for  example,  exempting  those  who  have 
practiced  in  a  given  state  for  five  years  prior  to  the  taking  effect  of 
the  statute  in  question.71 

There  can  be  no  doubt  that  it  is  within  the  proper  power  of  the 
legislature  to  provide  that  some  people  may  and  some  may  not  prac- 
tice medicine;  provided  that  the  characteristics  and  conditions  dis- 
tinguishing the  former  class  from  the  latter  are  of  a  kind  tending  to 
make  their  exercise  of  that  profession  more  beneficial  or  less  perilous 
to  the  community  than  the  class  excluded.72 

§   12   (a). — The  "Due  Process  of  Law"  Clause  in  Amendment 

Fourteen 
Generally  speaking,  medical  practice  acts  have  been  held  not  to 
fall  within  that  part  of  Section  1  of  the  Fourteenth  Amendment 
which  declares  that  no  state  shall  "deprive  any  person  of  life,  liberty 
or  property  without  due  process  of  law."  For  such  laws  properly 
drafted  come  under  the  police  power  of  a  state  and  as  such  are 
a  proper  exercise  of  that  power  in  scope  and  purpose.73 


69.  Slaughter  House  Cases,  16  Wall.  (83  U.  S.)  36,  74,  21  L.  ed.  394.     J 
Bartemeyer  v.  Iowa,  18  Wall.  (85  U.  S.)  129,  21  L.  ed.  929. 

Miller  v.  Texas,  153  U.  S.  535,  38  L.  ed.  812,  14  Sup.  Ct.  Rep.  876. 

70.  Slaughter  House  Cases,  et  sequi,  ut  supra.     (Note  69.) 

Dent  v.  West  Virginia,  129  U.  S.  114,  32  L.  ed.  623,  9  Sup.  Ct.  Rep.  231. 

Harding  v.  People,  10  Colo.  387,  15  Pac.  727. 

People  v.  Hasbrouck,   11   Utah  291,  39  Pac.  918. 

People  v.  Phippin,  70  Mich.  6,  37  N.  W.  888. 

State  ex  rel.  Kellogg  v.  Currans  et  al.,  Ill  Wis.  431. 

71.  People  v.  Phippin,  70  Mich.  6,  37  N.  W.  888. 

72.  State  ex  rel.  Kellogg  v.  Currans  et  al.,  Ill  Wis.  431,  87  N.  W.  561. 
Harding  v.  People,  10  Colo.  387,  15  Pac.  727. 

People  v.  Phippin,  70  Mich.  6,  37  N.  W.  888. 
People  v.  Hasbrouck,  11  Utah  291,  39  Pac.  918. 

73.  Watson  v.  Maryland,  218  U.  S.  173,  54  L.  ed.  987,  30  Sup.  Ct.  Rep.  644. 
Dent  v.  West  Virginia,  129  U.  S.  114,  32  L.  ed.  623,  9  Sup.  Ct.  Rep.  231. 
Reetz  v.  Michigan,  188  U.  S.  505,  47  L.  ed.  563,  23  Sup.  Ct.  Rep.  390. 
Hawker  v.  New  York,  170  U.  S.  189,  42  L.  ed.  1002,  18  Sup.  Ct.  Rep.  573. 
Meffert  v.  Packer,  195  U.  S.  625,  49  L.  ed.  350,  25  Sup.  Ct.  Rep.  790. 
Williams  v.  Arkansas,  217  U.  S.  79,  54  L.  ed.  673,  30  Sup.  Ct.  Rep.  493. 
People  v.  Apfelbaum,  251  111.  18. 

State  v.  Smith,  233  Mo.  242,  135  S.  W.  465,  33  L.  R.  A.  (N.  S.)  179. 


21 

If  the  statute  be  so  drafted  as  not  to  result  in  any  arbitrary  depriva- 
tion of  any  person's  liberty  or  property  or  the  right  to  engage  in 
a  lawful  calling,  then  it  cannot  contravene  this  clause  of  Amend- 
ment 14.  The  qualifications  of  learning,  skill  and  character  required 
by  such  acts  depend  primarily  upon  the  judgment  of  the  state  as 
to  their  necessity.  If  appropriate  to  the  profession  of  healing  and 
attainable  by  reasonable  study  and  application,  no  objection  can  be 
made  to  them  merely  on  account  of  their  stringency  or  difficulty.74 

Such  laws  must  be  general  in  their  operation  upon  the  subjects 
to  which  they  relate.  The  classifications  made  therein  as  to  who 
may  practice  and  the  like  must  be  reasonable  and  not  arbitrary  and 
capricious.  And  there  must  be  a  logical  relation  to  the  ends  sought 
to  be  attained  by  the  statute  which  must  apply  equally  to  all  persons 
similarly  situated.75 

The  provisions  and  regulations  of  such  a  statute  should  be  enforce- 
able in  the  usual  mode  established  in  the  administration  of  govern- 
ment with  respect  to  kindred  matters — that  is,  by  proceedings  adapted 
to  the  nature  of  the  case.  Due  process  is  not  necessarily  judicial 
process.  And  hence  power  reposed  by  a  statute  in  a  Board  of  Med- 
ical Examiners  is  proper.  Such  power  cannot  be  questioned  unless 
it  be  exercised  in  an  arbitrary,  capricious  or  unfair  manner  by  the 
board.76 


73. — Continued. 

Parks  v.  State,  159  Ind.  211,  59  L.  R.  A.  190,  64  N.  E.  862. 

State   ex  rel.   Burroughs  v.   Webster,   150   Ind.  607,  41    L.   R.   A.  212,   50 

N.  E.  750. 
Bragg  v.  State,  134  Ala.  165,  58  L.  R.  A.  925,  58  So.  728. 
Little  v.  State,  60  Neb.  749,  51  L.  R.  A.  717,  84  N.  W.  248. 
State  v.  Gravett,  65  Ohio  St.  289,  55  L.  R.  A.  791,  87  A.  S.  R.  605,  62  N.  E. 

325 
State  v.  Marble,  72  Ohio  St.  21,  70  L.  R.  A.  835,  73  N.  E.  1063. 
People  v.  Allcutt,  102  N.  Y.  S.  678,  117  App.  Div.  546  (aff'd  in  189  N.  Y. 

517,  81  N.  E.  1171). 
People  v.  Mulford,  125  N.  Y.  S.  680,  140  App.  Div.  716  (aff'd  in  202  N.  Y.— ). 
People  v.  Phippin,  70  Mich.  6,  37  N.  W.  888. 
State  v.  Miller,  146  Iowa  521,  124  N.  W.  167. 
State  v.  Adkins,  145  Iowa  671,  124  N.  W.  627. 

State  v.  Wilhite,  132  Iowa  226,  109  N.  W.  730,  11  A.  &  E.  Ann.  Case.  180. 
State  v.  Edmunds,  127  Iowa  333,  101  N.  W.  431. 
State  v.  Heath,  125  Iowa  585,  101  N.  W.  429. 
State  v.  Bair,  112  Iowa  466,  84  N.  W.  532,  51  L.  R.  A.  776. 
Scholle  v.  State,  90  Md.  729,  50  L.  R.  A.  411,  46  Atl.  326. 
State  v.  Yegge,  19  S.  D.  234,  103  N.  W.  17. 
Collins  v.  Texas  (U.  S.),  32  Sup.  Ct.  Rep.  286. 
Chenoweth  v.  State  (Colo.),  135  Pac.  771. 

74.  Commonwealth  v.  Porn,  196  Mass.  326,  17  L.  R.  A.  (N.  S.)  94,  82  N.  E.  31. 
See  also  cases  in  Note  73,  ut  supra. 

75.  Dent  v.  West  Virginia,  129  U.  S.  114. 

76.  State  v.  Buswell,  40  Neb.  158,  24  L.  R.  A.  68,  58  N.  W.  728. 

Bandel  v.  Dept.   of  Health,   193  N.  Y.   133,  85   N.   E.   1067,  21   L.   R.  A. 

(N.  S.)  49.     McGehee,  Due  Process  of  Law,  56. 
See  also  Note  73,  ut  supra. 


22 

The  fact  that  a  law  may  be  improperly  administered  and  thus 
work  ill  is  not  to  be  considered.  Nor  are  the  motives  or  policy  which 
induces  such  an  enactment.  But  in  such  a  law  the  qualifications  as 
to  learning,  character,  etc.,  -must  be  appropriate  and  sufficient  to 
guard  the  public  against  any  real  danger.  And  also  such  a  measure 
must  fairly  secure  or  tend  to  secure  the  objects  sought  to  be  attained 
by  it  and  must  not  be  patently  unreasonable.77 

It  has  been  insisted  that  the  requirement  of  a  diploma  from  a 
reputable  medical  school  as  a  condition  precedent  to  licensure  is 
unreasonable  and  in  contravention  of  the  Fourteenth  Amendment. 
But  clearly  this  is  not  the  case.  For  if  a  board  should,  in  passing  on 
the  reputability  of  a  school  and  the  like,  through  malice  or  prejudice 
or  dishonesty  arbitrarily  refuse  or  revoke  a  license,  the  injured  party 
would  have  his  remedy  by  appropriate  proceedings  in  the  courts  and 
the  board  would  be  restrained  from  doing,  or  compelled  to  undo  the 
wrong.78 

If  the  action  of  the  board  is  in  good  faith,  its  final  determination 
of  qualification  is  not  obnoxious  to  any  constituted  provision.  Due 
process  of  law  is  not  necessarily  judicial  process.  A  uniform  rule 
and  a  uniform  process  for  ascertaining  and  determining  qualifications, 
as  prescribed  by  this  act,  operate  equally  on  all  persons,  affording  to 
all  persons  the  right  to  establish  their  qualifications  before  a  board. 
This  is  due  process  of  law.79  A  statute  which  gives  a  physician  an 
opportunity  for  a  rehearing  before  a  tribunal  authorized  to  protect 
his  rights  and  an  appeal  to  a  superior  court  on  both  the  law  and  the 
fact  answers  every  requirement  of  due  process  of  law.80 

Again81  a  provision  that  certain  classes  should  be  excepted  from 
the  application  of  the  law  was  argued  to  be  discriminatory  as  for- 
bidden by  the  Fourteenth  Amendment.  It  was  held,82  however,  that 
if  the  conditions  surrounding  all  persons  who  desired  to  practice 
were  alike  there  could  be  no  differences  made  as  to  the  terms  upon 
which  a  certificate  could  be  obtained.  But  often  there  are  differences 
as  to  conditions  and  situations  by  which  it  becomes  reasonable  that 
greater  precautions  are   required  in  some  cases  than  in  others.     In 


77.  Otis  v.  Parker,  187  U.  S.  606,  608,  47  L.  ed.  323,  327,  23  Sup.  Ct.  Rep.  168. 
And  see  cases  generally,  Note  73,  ut  supra. 

78.  Fox  v.  Territory,  2  Wash.  T.  297,  5  Pac.  603.  ' 

79.  Fox  v.  Territory,  2  Wash.  T.  297,  5  Pac.  603. 

80.  Wolf  v.  The  State  Board,  etc.  (Minn.),  123  N.  W.  1074. 

Craig  v.  Board  of  Medical  Examiners,  etc.,  12  Mont.  203,  29  Pac.  532. 

81.  Pub.  Gen.  L.  Md.,  Art.  43,  Title  Health,  Subtitle  Practitioners  of  Medi- 

cine,  Sec.   61. 

82.  Scholle  v.  State,  90  Md.  729,  46  Atl.  326. 


23 

such  cases,  classes  may  be  formed  and  certificates  may  be  granted  to 
some  without  examination  while  others  may  be  altogether  exempted 
from  the  burdens  of  being  registered.  But  these  classes  must  be 
created  upon  considerations  that  are  promotive  only  of  the  public 
interest.  If  they  are  so  created  they  do  not  constitute  an  unlawful 
discrimination  and  do  not  impair  the  equal  rights  which  all  can  claim 
in  the  enforcement  of  the  law. 

It  is  undoubtedly  true,  as  stated  by  Judge  Cooley,  that  a  proper 
exercise  of  the  police  power  cannot  come  in  conflict  with  the  national 
jurisdiction.  Still,  the  ultimate  test  of  propriety  must  be  found  in 
the  limitations  of  the  Fourteenth  Amendment,  since  it  operates  to 
hedge  in  the  field  of  the  police  power  to  the  extent  of  preventing  the 
enforcement  of  statutes  in  denial  of  the  rights  that  the  amendment 
protects.  This  is  especially  true  of  statutes  tending  to  deny  to  per- 
sons the  right  to  follow  their  accustomed  vocations  in  life  while  the 
same  right  is  granted  to  others.  The  courts  are  insistent  under  these 
circumstances  that  there  must  be  some  substantial  basis  in  reason  and 
justice  for  the  discrimination.  In  cases  where  there  is  room  for 
the  presumption  that  a  substantial  and  just  reason  furnished  the 
basis  for  the  legislation  enacted  in  the  carrying  out  of  a  public  pur- 
pose, then  the  exercise  of  the  legislative  discretion  in  the  establishing 
of  a  classification  is  to  be  respected.83 

In  the  exercise  of  the  police  power  there  must  be  a  considerable 
discretion  vested  in  the  legislature,  whereby  some  people  have  rights 
or  suffer  burdens  that  others  do  not.  If  an  objection  has  any  real 
basis  the  statute  must  be  condemned  by  the  courts.  The  statute  of 
a  state  that  deprives  any  person  of  his  "life,  liberty  or  property 
without  •  due  process  of  law"  cannot  be  upheld  on  the  theory  that 
it  is  an  exercise  of  the  power  of  classification.84 

A  statute  which  prescribes  a  residence  of  three  years  in  a  given 
locality  as  a  prerequisite  to  the  practice  of  medicine  is  valid  here- 
under.85 For  it  may  be  conceded  that  it  is  often  necessary  to  divide 
into  classes  the  subjects  upon  which  a  law  operates.  The  distinction 
made  in  such  a  case  must  be  reasonable  and  not  arbitrary.  It  will 
then  justify  the  application  of  different  rules  to  the  subject  thus 
separated.  Now  this  section  makes  a  distinction  recognized  in  all 
the  affairs  of  life.     The  distinction  is  neither  arbitrary  nor  unreason- 


83.  Parks  v.  State,  159  Ind.  211,  64  N.  E.  862,  59  L.  R.  A.  190. 

84.  Parks  v.  State,  159  Ind.  211. 
But  see 

Chenoweth  v.  State  (Colo.),  135  Pac.  771. 

85.  Iowa  Code,  Sec.  2579,  Public  Health. 


24 

able.  It  is  in  harmony  with  the  common  knowledge  of  the  differ- 
ences existing  between  physicians  having  a  definite  residence  and 
those  who  have  not.86 

Refusing  or  revoking  a  certificate  on  account  of  advertising  under 
a  false  name87  is  not  in  contravention  of  the  Fourteenth  Amend- 
ment of  the  federal  constitution.  For  it  is  a  legitimate  exercise  of 
the  police  power  in  protecting  the  public  against  the  deception  and 
fraud  practiced  by  irresponsible  and  quack  doctors  to  require  every 
physician  to  have  the  license  of  the  State  Board  of  Health  granted 
in  his  own  name  and  to  practice  or  advertise  under  no  other.  Due 
process  of  law  does  not  necessarily  imply  judicial  proceedings. 
Orderly  proceedings  according  to  established  rules  which  do  not 
violate  fundamental  right  must  be  observed,  but  there  is  no  vested 
right  in  any  particular  remedy  or  form  of  proceeding.  A  general 
law  administered  in  its  regular  course  according  to  the  form  of 
procedure  suitable  and  proper  to  the  nature  of  the  case  conformable 
to  the  fundamental  rules  of  right  and  affecting  all  persons  alike  is 
due  process  of  law.88 

Licensed  .medical  practitioners  may  be  divided  into  two  classes,89 
the  basis  of  the  classification  being  the  mode  in  which  the  business 
is  carried  on,  e.  g.,  those  who  practice  in  the  mode  defined  by  the 
statute  as  itinerants  and  those  who  follow  other  methods.  And 
one  of  these  classes  may  be  taxed  while  the  other  is  not.  For  it  is 
well  settled  that  the  state  may  prescribe  qualifications  which  persons 
must  possess  lawfully  to  practice  medicine  and  surgery.  And  further 
the  state  may  require  persons  desiring  to  enter  such  practice  to  obtain 
a  license  or  certificate  of  proficiency.  The  method  or  means  by 
which  those  qualifications  are  to  be  evidenced  is  very  largely  if  not 
wholly  within  the  exercise  of  legislative  discretion.  A  state  may 
also  lay  an  occupation  tax  on  physicians  and  surgeons  or  on  a  fixed 
class  of  that  profession.  Such  a  tax  would  be  neither  arbitrary  nor 
unreasonable  and  is  not  objectionable  so  long  as  the  classification  itself 
is  proper.90 


86.  State  v.  Bair,  112  la.  466,  84  N.  W.  532. 

87.  Medical  Practice  Act  of  111.,  Act  of  1899,  amended  in  1901,  Sec.  6. 

88.  People  v.  Apfelbaum  (111.),  95  N.  E.  995. 
But  see 

Chenoweth  v.  State  (Colo.),  135  Pac.  771. 
Graeb  v.  State  (Colo.),  135  Pac.  776. 

89.  Ch.  176,  Laws  of  South  Dakota  1903,  Sec.  19. 

90.  State  v.  Doran  (S.  Dak.),  134  N.  W.  53. 

91.  Otis  v.  Parker,  187  U.  S.  606,  609,  47  L.  ed.  323,  327. 
But  see 

Chenoweth  v.  State  (Colo.),  135  Pac.  771. 


25 

As  regards  the  attitude  the  courts  should  take  in  construing  these 
laws  generally,  Mr.  Justice  Holmes  has  said  :01  "While  the  courts  must 
exercise  a  judgment  of  their  own,  it  by  no  means  is  true  that  every 
law  is  void  which  may  seem,  to  the  judges  who  pass  upon  it,  exces- 
sive, unsuited  to  its  ostensible  end,  or  based  upon  conceptions  of 
morality  with  which  they  disagree.  Considerable  latitude  must  be 
allowed  for  differences  of  view,  as  well  as  for  possible  peculiar  con- 
ditions which  this  court  can  know  but  imperfectly  if  at  all.  Other- 
wise, a  constitution,  instead  of  embodying  only  relatively  fundamental 
rules  of  right  as  generally  understood  by  all  English-speaking  com- 
munities, would  become  the  partisan  of  a  particular  set  of  ethical  or 
economical  opinions  which  by  no  means  are  held  semper  iibique  et  ab 
omnibus.  .  .  .  No  court  would  declare  a  usury  law  unconstitutional 
even  if  every  member  of  it  believed  that  Jeremy  Bentham  had  said 
the  last  word  on  that  subject,  and  had  shown  for  all  time  that  such 
laws  did  more  harm  than  good." 

§  12  (b). — "The  Equal  Protection  of  the  Law:" — The  various 
Medical  Practice  Acts  have  been  held  generally  not  to  contravene 
that  part  of  Section  1  of  the  Fourteenth  Amendment  of  the  federal 
constitutions  which  declares  that  no  state  shall  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws.  For  the 
state  legislatures  have  the  power  to  enact  laws  of  this  character  and 
the  details  of  such  legislation  rests  primarily  within  the  discretion 
of  the  state  legislature.92 

The  classifications  made  in  these  various  medical  practice  acts 
is  generally  considered  reasonable.  They  have  been  almost  uniformly 
held  as  not  arbitrary  or  oppressive.93  Classification  is  deemed  within 
the  legislative  power  of  the  state  as  having  a  fair  relation  to  the 
object  of  such  statutes.  As  usually  drawn  up  these  laws  within  the 
sphere  of  their  operation  affect  alike  all  persons  similarly  situated.94 


92.  Dent.  v.  West  Virginia,  129  U.  S.  114.  32  L.  ed.  623,  9  Sup.  Ct.  Rep.  231. 

Watson  v.  Maryland,  218  U.  S.  173,  54  L.  ed.  987,  30  Sup.  Ct.  Rep.  644. 

Reetz  v.  Michigan,  188  U.  S.  505,  507,  47  L.  ed.  563,  565,  23  Sup.  Ct.  Rep.  390. 

Hawker  v.  New  York,  170  U.  S.  189,  192,  42  L.  ed.  1002,  1004,  18  Sup.  Ct. 
Rep.  573. 

Meffert  v.  Packer,  195  U.  S.  625,  49  L.  ed.  350,  25  Sup.  Ct.  Rep.  790. 

Williams  v.  Arkansas,  217  U.  S.  79,  54  L.  ed.  673,  30  Sup.  Ct.  Rep.  493. 

Collins  v.  Texas,   (U.  S.)    Sup.  Ct.  Rep.  286. 

But  see 

Chenoweth  v.  State  (Colo.),  135  Pac.  771. 

Graeb  v.  State  (Colo.),  135  Pac.  776. 
93  Parks  v.  State,  159  Ind.  211,  59  L.  R.  A.  190. 
94.  Dent  v.  West  Virginia,  129  U.  S.  114,  32  L.  ed.  623,  9  Sup.  Ct.  Rep.  231. 

Watson  v.  Maryland,  218  U.  S.  173,  54  L.  ed.  987,  30  Sup.  Ct.  Rep.  644. 

Reetz  v.  Michigan,  188  U.  S.  505,  47  L.  ed.  563,  23  Sup.  Ct.  Rep.  390. 

Hawker  v.  New  York,  170  U.  S.  189,  42  L.  ed.  1002,  18  Sup.  Ct.  Rep.  573. 


/,  I  I  l>' 


26 


A  person  will  not  be  heard  to  complain  of  unfair  or  unjust  action 
on  the.  part  of  a  Board  of  Examiners  when  such  a  contention  is 
based  solely  on  a  fancied  inequality  of  a  statute.  Or  which  arises 
only  on  his  individual  theory  of  how  the  law  would  be  construed  by 
the  board  if  he  were  to  apply  for  an  examination.95 

There  may  be  excepted  from  a  statute  all  who  were  practicing  at 
the  passage  of  the  act  and  the  like.  Such  exceptions  are  not  deemed 
arbitrary  nor  as  denying  the  equal  protection  of  the  laws.  For  the 
object  sought  to  be  accomplished  by  such  laws  is  the  protection  of 
the  public  against  incompetent  and  ignorant  practitioners  of  medicine. 
Such  classifications  to  be  deemed  invalid  must  be  obviously  arbitrary 
and  must  be  shown  not  to  rest  on  some  difference  which  bears  a 
reasonable  and  just  relation  to  the  act — the  thing — in  respect  to 
which  the  classification  is  proposed.96 

It  is  fair  to  assume  that  those  already  in  the  practice,  many  of 
whom  have  grown  gray  in  the  service  of  humanity  and  the  allevia- 
tion of  suffering  have  already  received  that  public  approbation  which 
is  a  sufficient  guarantee  of  competency.  These  practitioners  should 
not  be  needlessly  subjected  to  the  humiliation  of  an  examination  while 
those  already  in  practice  who  have  proven  themselves  incompetent 
have  been  equally  stamped  with  public  disapproval.  The  statute 
bearing  alike  upon  all  individuals  of  each  class  is  not  a  discrimination 
forbidden  by  the  Fourteenth  Amendment.  It  has  been  frequently 
adjudged  by  the  Supreme  Court  of  the  United  States  that  the  Four- 
teenth Amendment  does  not  restrict  the  powers  of  the  state  when  the 
statute  applies  equally  to  all  persons  in  the  same  class.  The  state 
is  the  judge  of  the  classification.07 

The  regulation  of  a  particular  trade  or  business  essential  to  the 
public  health  and  safety  are  within  the  legislative  capacity  of  the 


94. — Continued. 

State  ex  rel.  Burroughs  v.  Webster,  150  Ind.  607,  41  L.  R.  A.  212,  50  N.  E. 

750. 
Parks  v.  State,  159  Ind.  211,  59  L.  R.  A.  190. 
Little  v.  State,  60  Neb.  749,  51  L.  R.  A.  717,  84  N.  W.  248. 
Commonwealth  v.  Jewell,  199  Mass.  558,  85  N.  E.  858. 
Scholle  v.  State,  90  Md.  729,  50  L.  R.  A.  411,  46  Atl.  326. 
Williams  v.  Arkansas,  217  -U.  S.  79,  54  L.  ed.  673,  30  Sup.  Ct.  Rep.  493. 
Collins  v.  Texas,  32  Sup.  Ct.  Rep.  (U.  S.)  286. 
But  see 

Chenoweth  v.  State  (Colo.),  135  Pac.  771. 
Graeb  v.  State  (Colo.),  135  Pac.  776. 

95.  Dent  v.  West  Virginia,  129  U.  S.  114. 
Collins  v.  Texas,  32  Sup.  Ct.  Rep.  (U.  S.)  286. 
And  cases  in  Note  94,  ut  supra. 

96.  Watson  v.  State,  105  Md.  650,  66  Atl.  635. 

97.  State  v.  Call,  121  N.  C.  646,  28  S.  E.  517. 


27 

state  in  the  exercise  of  its  police  power.  And  unless  such  regulations 
are  so  unreasonable  and  extravagant  as  to  interfere  with  property 
and  personal  rights  of  citizens  unnecessarily  and  arbitrarily  they  are 
within  the  power  of  the  state.  The  classification  of  the  subjects  of 
such  legislation  so  long  as  such  a  classification  has  a  reasonable  basis 
and  is  not  merely  arbitrary  selection  without  real  difference  between 
the  subjects  included  and  those  omitted  from  the  law  does  not  deny 
to  the  citizen  "equal  protection  of  the  law."  Before  a  law  of  this 
kind  can  be  declared  relative  of  the  Fourteenth  Amendment  as  an 
unreasonable  classification  of  the  subjects  of  such  legislation  because 
of  the  omission  of  certain  classes  the  court  must  be  able  to  say  that 
there  is  "no  fair  reason  for  the  law  that  would  not  require  with 
equal  force  its  extension  to  others  whom  it  leaves  untouched."  The 
selection  of  these  exempted  classes  is  within  the  legislative  power 
subject  only  to  the  restriction  that  it  be  not  arbitrary  or  oppressive 
and  apply  equally  to  all  persons  similarly  situated.08 

The  Fourteenth  Amendment  does  prohibit  arbitrary  discrimination 
between  persons  or  fixed  classes  of  persons  such  as  that  based  on 
color  or  race  or  nationality  or  state  citizenship.  It  does  not  prohibit 
reasonable  discrimination  based  on  the  requirements  of  the  public 
health  or  morals.  Medical  Practice  Acts  are  purely  for  police  pur- 
poses designed  solely  for  the  promotion  of  the  health  of  all  the  people 
within  the  state.  The  distinctions  made  in  such  acts  by  the  legisla- 
tures are  clearly  required  by  circumstances  and  by  the  purpose  of  the 
act,  viz.,  the  health  of  the  people.  Such  a  measure  does  not  break 
against  the  Fourteenth  Amendment."  Moreover  there  is  no  precise 
application  of  the  rule  of  reasonableness  of  classification  and  the  rule 
of  equality  permits  many  practical  inequalities.  And  necessarily  so. 
In  a  classification  for  governmental  purposes  there  cannot  be  an  exact 
exclusion  or  inclusion  of  persons  and  things.100 

The  fact  for  instance,  that  a  statute  may  require  examination  in 
some  subject  that  is  not  directly  useful  to  a  man  intending  to  spe- 
cialize does  not  constitute  an  objectionable  inequality.  It  cannot  be 
seriously  urged  that  an  act  is  arbitrarily  discriminatory  and  oppres- 
sive merely  because  such  a  person  cannot  obtain  a  license  to  prac- 
tice this  one  branch  of  the  science  without  taking  an  examination  or 


98.  Watson  v.  State  of  Maryland  (U.S.),  30  Sup.  Ct.  Rep.  644. 

99.  State  v.  Bohemier,  92  Me.  257,  52  Atl.  643. 

City  of  Fairfield  v.  Shallenberger,  135  la.  615,  113  N.  W.  459. 
Williams  v.  Arkansas,  217  U.  S.  79. 

Parks  v.  State,  159  Ind.  211,  59  L.  R.  A.  190,  64  N.  E.  862,  and  cases  cited 
therein. 
100.  Magoun  v.  Illinois  Trust  &  Savings  Bank,  170  U.  S.  283. 


28 

otherwise  evidencing  his  qualifications  in  other  subjects  for  which 
he  has  no  direct  use. 

An  Iowa  statute  required  all  practitioners  to  be  examined  in 
certain  given  subjects  regardless  of  his  particular  school.  It  was 
held  not  to  be  unreasonable  to  exact  from  every  one  who  undertook 
to  prevent,  to  cure  or  alleviate  disease  and  suffering  some  knowledge 
of  the  nature  of  disease,  its  origin,  its  anatomical  and  physiological 
features,  its  causes  and  even  of  the  action  of  drugs.101 

These  laws  are  not  class  legislation  discriminating  against  some 
and  favoring  others,  but  within  the  sphere  of  their  operation  they 
affect  alike  all  persons  similarly  situated.102 

§  13. — Medical  Practice  Acts  and  the  Ex  Post  Facto  Clause 
An  ex  post  facto  law  is  said  to  be  one  which  in  its  operation  makes 
that  criminal  which  was  not  so  at  the  time  the  action  was  performed. 
Or,  which  increases  the  punishment  or  in  short  which  in  relation 
to  the  offense  or  its  consequences  alters  the  situation  of  any  person 
to  his  disadvantage.103 

The  federal  constitution  forbids  any  state  to  pass  any  bill  of 
attainder,  ex  post  facto  law,  etc.10*  This  would  seem  to  preclude  a 
state  from  amending  a  medical  practice  act  in  order  to  make  it  con- 
form more  nearly  to  the  most  advanced  standards  of  civilization. 
Thus  a  man  admitted  to  the  practice  of  medicine  could  not  be  sub- 
jected to  what  may  be  termed  disciplinary  measures  for  a  past  offense 
of  such  a  nature  as  to  negative  any  trust  that  may  have  been  reposed 
in  him  as  far  as  the  public  at  large  are  concerned.  And  this  would 
be  the  case  were  it  not  for  the  continuing  power  of  regulation  which 
is  vested  in  the  state.  While  a  man  may  have  expiated  his  offense 
still  his  having  committed  such  an  act  may  render  him  unworthy  to 
practice  medicine.  Now  under  this  continuing  power  a  state  may 
forbid  his  further  practicing,  and  this  is  not  in  the  nature  of  further 


101.  State  v.  Heath,  125  la.  585,  101  N.  W.  429. 
State  v.  Marble,  72  Ohio  St.  21,  70  L.  R.  A.  835. 
O'Neil  v.  State,  115  Tenn.  427,  3  L.  R.  A.  (N.  S.),  762. 
Dent  v.  West  Virginia,  129  U.  S.  114. 

102.  Barbier  v.  Connolly,  113  U.  S.  27,  28  L.  ed.  923. 
Williams  v.  Arkansas,  217  U.  S.  79,  54  L.  ed.  673. 
Collins  v.  Texas,  32  Sup.  Ct.  Rep.  (U.  S.)  286. 
Contra 

Chenoweth  v.  State  (Colo.),  135  Pac.  771. 

103.  Mr.  Justice  Lawrence  in  United  States  v.  Hall,  2  Wash.  C.  C.  366 
Semble 

Kring  v.  Missouri,  107  U.  S.  221-8. 
Medley  Petitioner,  134  U.  S.   160-71. 

104.  Art.  1,  Sec.  9  (3),  United  States  Constitution. 


29 

punishment  but  the  conviction  for  the  past  offense  is  made  evi- 
dence of  character,  and  a  man  thus  proven  to  be  of  improper  morals 
is  forbidden  to  practice  medicine105  for  the  purpose  of  protecting  the 
public  against  those  of  ill  repute. 

But  this  doctrine  is  severely  criticised  by  Freund,  and  his  argu- 
ments bear  no  little  weight.  Mr.  Freund  admits  that  the  claim  to 
protection  grows  with  the  study  and  preparation  required  for  the 
successful  practice  of  a  profession.  So  with  regard  to  professional 
qualifications  the  same  reasons  which  control  in  imposing  conditions 
in  the  first  instance  may  call  for  further  conditions  as  new  modes  of 
treating  disease  are  discovered.  But  he  thinks  a  statute  should  if 
possible  be  interpreted  as  not  applying  to  existing  practitioners.100 

A  statute  of  New  York  in  1893  provided  that  no  person  should 
after  conviction  of  felony  attempt  to  practice  medicine  on  penalty  of 
fine  and  imprisonment.  In  the  case  in  question107  the  defendant  at 
the  time  of  the  law's  enactment  was  engaged  in  the  practice  of  medi- 
cine. He  had  been  convicted  in  1878  of  committing  an  abortion, 
which  constituted  a  felony,  and  had  been  punished  therefore  by 
imprisonment.  In  1896  he  was  indicted  and  convicted  of  practicing 
illegally  under  the  statute  of  1893  which  precluded  from  the  practice 
of  medicine  all  who  might  be  convicted  of  a  felony.  This  conviction 
was  sustained  in  the  highest  state  court.10S  The  case  was  carried  to 
the  Federal  Supreme  Court  on  the  ground  that  the  act  thus  retro- 
actively construed  was  an  ex  post  facto  law.  The  conviction  was 
again  sustained.109 

The  Supreme  Court  said  in  Hawker  v.  New  York,  that  whatever 
is  ordinarily  connected  with  bad  character  or  indicative  of  it  may  be 
prescribed  by  the  legislature  as  conclusive  evidence  thereof.  Freund 
thinks  that  this  is  open  to  serious  question.  He  is,  however,  willing 
to  concede  that  a  state  may  pass  a  law  under  which  licenses  to  prac- 
tice medicine  may  be  refused  to  those  who  have  been  convicted  of 


105.  Hawker  v.  The  People  of  New  York,  170  U.  S.  189,  42  L.  ed.  1002,  18  Sup. 

Ct.  Rep.  573. 
Reetz  v.  The  People  of  Michigan,  188  U.  S.  505,  23  Sup.  Ct.  Rep.  390,  47  L. 

ed.  563. 
France  v.  The  State,  57  Ohio  1,  47  N.  E.  1041. 
Fox  v.  Territory,  2  Wash.  T.  297,  5  Pac.  603. 
Per  Justice  Harlan,  Hawker  v.  People,  ut  supra,  and  Freund,  Police  Power, 

Para.  545,  et  sequi,  contra. 

106.  Freund,  Police  Power,  Para.  545. 

In  re  Applications  to  Admission  to  Practice,  14  S.  D.  429,  85  N.  W  992 
Dent  v.  West  Virginia,  129  U.  S.  114. 

107.  Hawker  v.  New  York,  cited  Note  105. 

108.  People  v.  Hawker,  152  N.  Y.  234. 

109.  Hawker  v.  New  York,  170  U.  S.  189. 


30 

felony  before  the  enactment  of  the  law.  Though  how  the  time  of  a 
law's  enactment  can  affect  a  man's  morals  one  way  or  the  other  is  a 
question  which  he  leaves  unanswered.  The  Supreme  Court  main- 
tains that  a  previous  conviction  makes  a  presumption  of  bad  char- 
acter and  as  there  can  be  no  conclusive  evidence  of  bad  character  a 
strong  presumption  may  be  sufficient  to  exclude  from  entrance  upon 
a  pursuit  to  which  the  applicant  has  no  vested  right  and  as  to  which 
the  burden  of  proving  qualifications  may  be  thrown  upon  him.  "But," 
says  Freund,  "it  may  be  argued  that  conditions  are  altered  after  he 
has  become  established  in  his  profession.  It  may  be  conceded  that 
the  acquired  right  is  still  subject  to  regulation,  still  subject  to  proof 
of  qualification  but  the  proof  must  not  be  made  impossible.  He  may 
perhaps  after  previous  conviction  be  required  to  overthrow  the  pre- 
sumption of  bad  character  by  proof  of  unblemished  life  and  good 
reputation."  Now  under  this  statute,  Freund  claims,  he  is  absolutely 
debarred  from  showing  what  may  be  the  fact  that  he  has  reformed. 
He  therefore  asserts  that  the  statute  is  not  a  proper  police  regulation 
since  it  establishes  a  conclusive  presumption  of  fact,  the  necessary 
effect  of  which  is  to  take  away  an  acquired  right.  The  statute  does 
not  establish  the  fact.  It  is  submitted  as  is  said  in  Hawker  v.  New 
York,  that  this  is  simply  applying  the  doctrine  of  res  ad  judicata. 
That  is  Hawker  had  been  convicted  of  a  criminal  abortion.  He  had 
been  duly  adjudged  guilty  thereof  by  a  jury  of  his  peers.  Now  this 
statute  is  not  determining  his  character.  Far  from  it.  His  con- 
viction and  above  all  his  own  act  had  characterized  him.  The  stat- 
ute simply  says  the  conviction  may  be  used  as  evidence — and  as  con- 
clusive evidence,  for  the  purpose  of  protecting  the  public  and  not  in 
any  way  as  a  punishment.  Says  Freund,  further,  "It  cannot  be  main- 
tained as  establishing  a  cause  of  forfeiture  since  in  making  the  con- 
viction of  a  felony  conclusive  evidence  of  bad  character  where  it  was 
not  so  before  it  adds  to  the  punishment  after  the  offense  has  been 
expiated  and  is  therefore  an  ex  post  facto  law."  True,  forbidding 
a  man  to  practice  his  profession  after  becoming  more  or  less  pro- 
ficient therein  would  seem  quite  a  hardship.  And  also  it  would  seem 
that  the  revocation  of  a  license,  apparently  because  of  a  crime  already 
expiated,  was  but  additional  punishment  therefore,  and  ex  post  facto. 
But  such  is  not  the  case.  The  revocation  is  not  had  for  the  crime 
heretofore  committed,  nor  is  it  in  any  sense  a  punishment.  But  the 
revocation  is  had  for  the  character  of  which  the  crime  is  evidentiary. 
That  is,  a  conviction  for  a  crime  is  made  the  autoptic  proference  of 
character.     And  thus  it  may  be  said  that  the  license  is  revoked  not 


31 

to  punish  the  offender  but  to  protect  the  public.  This  would  seem  to 
be  on  the  theory  that  justice  consists  in  the  removal  of  all  tempta- 
tion from  the  individual  who  has  shown  himself  unable  to  cope  there- 
with, and  thus  subserve  both  moral  and  economic  ends.  Proceedings 
had  under  such  a  law  are  not  criminal.  The  state  is  simply  seeking  to 
ascertain  who  ought  to  be  permitted  to  practice  medicine  or  surgery. 
Criminality  arises  only  when  one  assumes  to  practice  without  having 
his  rights  to  do  so  fully  established.  There  is  no  attempt  to  punish  for 
a  past  offense.  The  law  in  the  most  extreme  view  can  only  be  con- 
sidered as  requiring  continuing  evidence  of  one's  qualification  as  a 
physician.  Such  a  law  is  not  ex  post  facto}10  Doubtless  one  who  has 
violated  the  criminal  law  may  thereafter  reform  and  become  in  fact 
possessed  of  a  good  moral  character.  But  the  legislature  has  the  power 
in  such  cases  to  make  a  rule  of  universal  application  and  no  inquiry  is 
permissible  back  of  the  rule  to  ascertain  whether  the  fact  of  which  the 
rule  is  made  the  absolute  test  does  or  does  not  exist.111 

§  14. — Medical  Practice  Acts  and  "The  Impairment  of  the 
Obligation  of  Contract" 
In  some  states  the  local  medical  societies  have  been  incorporated 
by  law  and  have  been  given  considerable  supervisory  power  and  the 
like  over  the  profession.  But  membership  in  these  societies  would 
be  insufficient  grounds  to  exempt  the  members  from  the  application 
of  a  law  passed  under  the  police  power  of  a  state.  That  is,  a 
charter  granted  such  a  society  would  not  constitute  a  bar  to  the 
power  of  the  legislature  to  further  regulate  the  practice  of  medicine 
and  the  licensing  of  physicians  in  the  state.112  Nor  would  such  a 
statute  be  an  impairment  of  the  obligation  of  contract  in  that  it  might 
conflict  with  a  grant  of  corporate  power.1  For  if  there  were  such 
a  grant  in  a  charter  the  state  reserves  the  right  to  revoke  such  a 
grant  by  subsequent  legislation.  As  no  state  can  alienate  its  right 
under  the  police  power  to  legislate  for  the  public  health  and  general 
welfare.1  Hence  no  one  legislature  can  find  the  right  of  subsequent 
legislatures  to  guard  the  safety  and  morals  of  the  people  by  appro- 
priate measures,  and  any  measure  that  would  tend  in  this  direction 
must  be  null  and  void  and  cannot  constitute  a  valid  contract.113 


110.  Reetz  v.  People  of  Michigan,  188  U.  S.  505,  23  Sup.  Ct.  Rep.  390,  47  L. 

ed.  563. 

111.  Hawker  v.  New  York,  170  U.  S.  189. 

112.  State  v.  Bohemier,  92  Me.  257,  52  Atl.  643. 

113.  Freund,  Police  Power,  Para.  24,  361,  506,  561,  564,  580. 
Thorpe  v.  Rutland  Ry.  Co.,  27  Vt.  140. 
Northwestern  Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  659. 
Boston  Beer  Co.  v.  Massachusetts,  97  U.  S.  25. 

Stone  v.  Mississippi,   101  U.  S.  814. 


32 

§  15. — Medical  Practice  Acts  and  "Autrefois  Acquit  or 

Convict" 

The  federal  constitution114  provides,  "nor  shall  any  person  be  sub- 
ject for  the  same  offense  to  be  twice  put  in  jeopardy  of  life  or  limb." 
But  such  a  plea  would  not  act  in  bar  to  an  indictment,  for  practicing 
medicine  without  a  license,  which  was  so  drawn  as  to  differ  materi- 
ally, on  its  face,  from  the  former  indictment.  That  is,  the  test  laid 
down  in  such  cases  is,  would  the  evidence  necessary  to  support  the 
second  indictment  have  been  sufficient  to  procure  a  legal  conviction 
on  the  first.115 

Supposing  an  indictment  be  so  drawn  as  to  amount  to  an  allega- 
tion of  a  separate  offense.  And  this  would  be  the  case  when  under 
the  statute  a  physician  is  charged  with  practicing  medicine  without 
a  license.  For  each  treatment  given  constitutes  a  violation  of  the 
statute  and  a  separate  offense.116  In  such  a  case,  therefore,  the  second 
indictment  would  charge  the  treatment  of  another  person  and  on  a 
different  date.  Now  the  proof  necessary  for  a  legal  conviction  under 
the  first  indictment  would  vary  materially  from  that  for  the  second, 
that  is,  the  evidence  in  the,  one  case  would  not  substantiate  the  charge 
in  the  second  case.  Consequently  the  plea  of  being  put  twice  in 
jeopardy  or  of  autrefois  acquit  would  not  constitute  a  bar.  And  a 
conviction  of  practicing  medicine  in  violation  of  the  statute  as  charged 
would  be  sustained.117 

Again,  under  "An  act  to  regulate  the  practice  of  midwifery,"  a 
state  board  revoked  the  license  of  a  midwife  for  improper  conduct. 
But  the  order  of  revocation  was  rescinded  owing  to  numerous 
"errata"  appearing  on  the  face  of  the  proceedings.  Subsequently  the 
license  was  again  revoked  on  the  same  charge  after  proper  proceedings 
were  had.  It  was  contended  that  the  board  was  without  jurisdiction 
to  entertain  the  second  charge  because  a  person  cannot  be  tried,  con- 
victed and  punished  twice  for  the  same  offense.  To  support  this 
it  was  argued  that  the  board  by  rescinding  its  first  order  merely 
restored  the  license  but  did  not  negative  the  penalty  of  suspension. 
And  hence  by  the  subsequent  revocation  the  defendant  was  being 
penalized  twice  for  the  same  offense  and  in  violation  of  the  federal 
constitution.     This  position,  however,  the  court  refused  to  sustain. 


114.  United  States  Constitution,  Amend.  V.;  S.  C.  1,  17;  N.  J.  1,  10;  Cal.  1,  13; 

111.  2,  10;  N.  Y.  1,  6. 

115.  State  v.  Van  Buren   (S.  C),  68  S.  E.  568. 

Frascella  v.  Board  of  Medical  Examiners  (N.  J.),  79  Atl.  1063. 

116.  State  v.  Van  Buren  (S.  C),  68  S.  E.  568. 

117.  State  v.  Van  Buren  (S.  C),  68  S.  E.  568. 


33 

The  fact  that  the  license  was  revoked  a  second  time,  but  strengthened 
the  case  against  the  midwife.  Moreover  the  provision  for  licensing 
these  practitioners  and  for  the  taking  away  of  such  licenses  for  a  viola- 
tion of  the  law  are  police  measures  for  the  public  safety.  And  there- 
fore it  would  be  objectionable  to  apply  thereto  the  highly  technical 
common  law  rules  which  should  be  deemed  relative  only  to  the  crim- 
inal code.  If  the  first  proceedings  had  been  set  aside  on  certiorari, 
or  a  like  action,  such  procedure  being  judicial  would  have  precluded 
the  charge  from  being  preferred  a  second  time.118 

Thus  it  may  be  said  that  plea  of  former  acquittal  will  not  be 
sustained  when  substantially  a  different  offense  is  charged,  nor  in  pro- 
ceedings by  a  state  board  under  a  statute  to  enforce  a  police  meas- 
ure for  the  public  safety. 

§   16. — Medical  Practice  Acts  and  the  So-Called  "Schools  of 

Medicine" 

Some  medical  practitioners  attempt  to  divide  themselves  into 
different  groups  or  schools  of  medicine.  And  these  artificial  groups 
are  variously  dealt  with  in  the  several  states.  In  some  by  definition  or 
judicial  interpretation  of  the  term  "Practice  of  Medicine"  the  stat- 
ute is  construed  to  apply  to  all  or  nearly  all  of  these  schools.  Again 
in  other  states  only  a  few  or  none  are  deemed  to  come  within  the 
meaning  of  the  law.  But  wherever  they  haye  been  dealt  with  so  as 
to  restrain  them  to  any  considerable  degree  a  question  has  arisen  as 
to  the  constitutionality  of  such  laws. 

(a)  Eclectics. — In  animadverting  against  these  laws  it  is  generally 
asserted  that  the  legislature  is  without  authority  to  constitute  as  a 
misdemeanor  the  pursuit  of  any  legitimate  and  proper  calling.  But 
in  regulating  the  practice  of  medicine  it  is  not  the  pursuit  of  the  call- 
ing which  is  prohibited  and  made  criminal  but  it  is  the  pursuit  of  the 
same  by  unauthorized  persons.119  In  so  legislating  no  attempt  is  made 
to  deal  with  any  school  of  medicine  such  as  the  eclectics  and  to  dis- 
criminate against  it.  The  fact  that  in  some  particular  instance  a 
board  should  have  improperly  rejected  an  application  made  it  for  the 
issuing  of  a  certificate  to  practice  might  possibly  give  rise  in  case  of 
abuse  to  a  right  of  action  for  the  correction  thereof.  But  the  pos- 
sibility of  such  misconduct  would  certainly  not  go  to  the  extent  of 
rendering  unconstitutional  the  law  under  which  the  board  was  created. 
There  is  no  constitutional  right  given  to  any  particular  persons,  who, 


118.  Frascella  v.  Board  of  Medical  Examiners  (N.  J.),  79  Atl.  1063. 

119.  Allopathic  State  Board  v.  Fowler,  50  La.  Ann.  1358,  24  So.  809. 


34 

entertaining  peculiar  theories  of  medicine,  group  themselves  together 
and  call  themselves  a  special  school  of  medicine  under  a  selected 
name,  to  be  recognized  and  dealt  with  as  such.  Whenever  the  pur- 
suit of  any  particular  occupation  or  profession  requires  for  the  pro- 
tection of  the  lives  or  health  of  the  general  public,  skill,  knowledge 
and  other  personal  attributes,  or  characteristics  in  the  person  pur- 
suing it,  the  General  Assembly  has  the  power  and  authority  to  have 
recourse  to  proper  measures  to  ensure  that  none  but  persons  possess- 
ing these  qualifications  should  pursue  it.  A  statute  to  that  effect  is 
not  open  to  attack  as  depriving  citizens  of  their  right  to  earn  a  living. 
The  right  to  practice  medicine  is  not  an  absolute  right  but  a  right  or 
privilege  to  be  exercised  under  conditions  and  limitations  regulated 
by  legislative  authority.120 

(b)  Osteopaths. — A  Texas  statute  declares  that  "any  person  shall 
be  regarded  as  practicing  medicine  within  the  meaning  of  this  act 
.  .  .  who  shall  treat  or  offer  to  treat  any  disease  or  disorder,  men- 
tal or  physical,  or  any  physical  deformity  or  injury,  by  any  system 
or  method,  or  to  effect  cures  thereof,  and  charge  therefore,  directly 
or  indirectly,  money  or  other  compensation."121  And  by  a  subse- 
quent section  of  the  same  act  it  is  provided  that  nothing  is  to  be  con- 
strued to  discriminate  against  any  particular  system,  and  it  is  not 
to  apply  to  nurses,  masseurs,  etc.  It  was  insisted  that  to  construe  this 
law  so  as  to  apply  to  osteopaths  would  render  the  same  unconstitu- 
tional.122 But  the  court  held  that  such  a  construction  inflicted  no 
wrong  on  this  school  of  medicine  contrary  to  the  Fourteenth  Amend- 
ment of  the  Constitution  of  the  United  States.  Nor  was  the  definition 
of  the  practice  of  medicine  in  Section  13  arbitrary  or  irrational. 
Whatever  may  be  the  osteopathic  dislike  of  medicines,  neither  the 
school  nor  any  member  of  it  would  suffer  any  constitutional  wrong 
by  calling  their  colleges  medical  schools  in  such  acts  for  the  purpose 
of  showing  that  it  satisfies  the  statutory  requirements.  And  generally 
speaking  it  is  plain  that  such  practitioners  may  be  made  amenable 
to  these  laws.  For  a  state  may  constitutionally  prescribe  conditions 
to  such  practice  as  may  be  considered  necessary  or  useful  to  secure 
competence  in  those  who  follow  it.  An  osteopath  undertakes  to  be 
something  more  than  a  nurse  or  a  masseur,  consequently  the  con- 
siderations which  justify  including  him  likewise  justify  the  exclusion 
of  the  lower  grades.123 


120.  Allopathic  State  Board,  etc.  v.  Fowler,  SO  La.  Ann.  1358. 

121.  Statutes  of  1907,  Texas,  Ch.  123,  Sec.  13. 

122.  Collins  v.  Texas,  32  Sup.  Ct.  Rep.  286   (U.  S.). 

123.  Collins  v.  Texas,  32  Sup.  Ct.  Rep.  (U.  S.)  286. 


35 

(c)  Chiropractors. — Any  similar  language  to  that  found  in  the 
Iowa  Medical  Practice  Act124  may  generally  be  construed  to  include 
those  practitioners  termed  chiropractors  and  may  be  taken  as  con- 
stitutional.125 If  the  theory  of  this  school  is  as  valuable  and  of  as 
much  consequence  to  the  world  as  is  contended  it  would  seem  that 
the  study  such  as  medical  practice  acts  often  require  of  anatomy, 
physiology,  general  chemistry,  pathology,  surgery,  and  obstetrics  would 
not  be  objectionable.  Surely  the  requirement  that  every  one  who  pro- 
poses to  devote  himself  to  the  prevention,  cure  or  alleviation  of  dis- 
ease and  pain  shall  possess  some  knowledge  of  the  nature  of  disease, 
its  origin,  its  anatomical  and  physiological  features,  its  causative  rela- 
tion and  of  the  preparation  and  action  of  drugs  ought  not  to  be 
denounced  as  exacting  or  unreasonable.  Indeed  without  such  prepa- 
ration one  might  entertain  a  suspicion  that  the  proposed  healer  was 
acting  selfishly  and  not  from  an  intelligent  conviction  that  his  method 
was  preferable  to  others.  All  a  state  insists  on  in  such  cases  is 
qualification,  and  when  possessed  of  this  and  armed  with  a  certificate 
so  evidencing  and  deeply  recorded  the  practitioner  may  follow  any 
system  of  healing  he  may  choose.  A  law  simply  going  this  length  and 
which  is  construed  to  apply  to  chiropractors  cannot  be  taken  to  con- 
travene any  of  those  principles  which  underlie  the  organic  acts  of  the 
several  states  or  the  United  States.120 

(d)  Suggestive  Therapeutics. — Chapter  344,  Laws  of  1907,  New 
York,  required  the  licensing  and  registration  of  all  persons  prior  to 
the  commencement  of  the  practice  of  medicine.  This  language  was 
held  to  apply  to  a  practitioner  of  "suggestive  therapeutics."  That  is 
practicing  "suggestive  therapeutics"  was  said  to  be  the  practice  of 
medicine  and  consequently  a  member  of  that  school  would  be  amen- 
able to  the  law.  This  was  said  to  deprive  a  person  of  the  legal  right 
to  carry  on  a  proper  business  and  hence  would  be  unconstitutional.127 
It  would  seem  that  no  discussion  is  needed  to  show  that  a  legislature 
has  the  right  to  enact  such  provisions  and  that  these  are  not  violative 
of  any  constitutional  provision  even  when  made  to  apply  to  the  school 
of  "suggestive  therapeutics."  A  patient  may  often  suffer  as  well  from 
a  failure  to  prescribe  proper  remedies  or  afford  surgical  relief  promptly 
as  from  making  improper  prescriptions  or  performing  unskillful  opera- 


124.  Ch.  17,  Title  12,  Iowa  Code,  Sees.  2579,  2580. 

125.  State  v.  Corwin   (la.),  131  N.  W.  659. 
State  v.  Miller  (la.),  124  N.  W.  167. 
Green  v.  Hodges   (Kan.),  138  Pac.  605. 

126.  State  v.  Corwin  (la.),  131  N.  W.  659. 

127.  People  v.  Mulford,  125  N.  Y.  Supp.  680. 
Smith  v.  People  (Ala.),  63  So.  28. 


36 

tions.  A  physician  who  holds  himself  out  to  treat  patients  for  physi- 
cal ills  should  know  whether  to  do  anything  and  what  to  do  to 
relieve  his  patients.  Otherwise  he  should  not  be  permitted  to  practice, 
and  impose  upon  the  unfortunate  poor.  Many  of  these  need  the  pro- 
tection of  the  state  against  quacks  both  in  and  out  of  the  profession 
of  medicine.  It  would  seem  that  no  sympathy  should  be  expended 
on  this  class  of  practitioners  who  seek  to  remain  outside  of  the  con- 
trol of  the  state  for  the  welfare  of  the  people.  Such  measures  are 
undoubtedly  constitutional.128 

(e)  Magnetic  Healing. — In  construing  and  passing  on  the  consti- 
tutionality of  the  Indiana  Medical  Practice  Act  as  applied  to  the  school 
of  magnetic  healing129  the  court  did  not  think  that  any  question  as 
to  the  authority  of  the  legislature  to  discriminate  against  a  particu- 
lar school  of  practitioners  was  involved.  The  court  was  not  judici- 
ally advised  that  magnetic  healing  so-called,  is  so  far  based  on  such 
a  degree  of  co-ordinated  arranged  and  systematized  knowledge  that 
it  can  be  termed  a  science.  Nor  does  it  seem  that  any  considerable 
degree  of  instruction  is  a  prerequisite  to  its  prosecution  as  it  is 
actually  practiced  by  those  whose  knowledge  does  not  go  beyond  the 
manifestation  of  the  phenomena  of  magnetism.  It  may  have  been  the 
judgment  of  the  legislature,  in  its  implied  exclusion  of  any  member 
of  this  school,  that  both  the  limitations  of  value  that  the  treatment 
possessed  and  the  dangers  attending  it,  made  it  wise  to  confine  its 
use  to  a  body  of  men  in  whose  hands  it  would  be  safer  to  intrust 
it,  because  of  their  education  in  subjects  relevant  to  its  administration. 

A  legislature  in  judging  of  matters  of  this  kind  is  authorized  to 
give  heed  to  the  opinions  of  scientific  men  and  presuming  that  this  be 
done,  sufficient  reason  may  doubtless  be  found  for  the  exclusion  of 
any  member  of  a  sect  or  the  sect  itself.  While  magnetic  healing  may 
be  based  on  some  elements  of  ascertained  knowledge  yet  there  is  a 
sufficient  element  of  danger  attendant  thereon  so  as  to  justify  a  legisla- 
ture in  taking  it  out  of  the  hands  of  empirics.  It  may  be  said  that 
a  statute  which  goes  no  further  than  to  establish  a  standard  which 
may  be  attained  by  reasonable  application  and  in  which  the  means 
has  an  appropriate  relation  to  the  end,  is  neither  an  arbitrary  nor 
unreasonable  deprivation  of  a  right.  Nor  is  a  classification  which 
excludes  empirics  and  the  like  from  the  practice  of  medicine  unrea- 
sonable or  arbitrary.130 


128.  Dent  v.  West  Virginia,  129  U.  S.  114. 
People  v.  Mulford,  125  N.  Y.  Supp.  680. 

129.  Parks  v.  State,  159  Ind.  211,  64  N.  E.  862,  59  L.  R.  A.  190. 

130.  Parks  v.  State,  159  Ind.  211. 


37 

(f)  Healers. — In  nearly  all  the  state  constitutions  and  in  the  fed- 
eral constitution  there  is  a  provision  of  some  sort  separating  church 
and  state  and  amounting  to  a  guarantee  of  religious  freedom.  As 
a  further  protection  and  since  many  schools  of  medicine  are  insepar- 
ably associated  with  religion  in  one  guise  or  another  many  medical 
practice  acts  exempt  the  adherents  of  a  religious  tenet  or  belief  from 
the  general  application  of  the  law.  The  Colorado  Act131  defines  the 
practice  of  medicine  as  exercising  the  healing  art  commercially.  Thus 
any  one  who  professes  to  cure  the  sick  under  any  system  and  charges 
therefore  is  practicing  medicine  within  the  meaning  of  the  law.  A 
healer  was  indicted  and  convicted  under  this  law.  The  point  was 
made  that  this  law  interfered  with  the  free  exercise  of  a  religious 
belief.  But  in  such  cases  it  is  not  the  religious  tenets  that  are  in 
controversy  but  the  manner  in  which  the  business  is  conducted.  The 
statute  lays  hands  on  commercial  healing  as  a  money-making  occu- 
pation, business  or  profession,  regardless  of  the  method  of  treatment 
or  the  curative  agency  employed.  As  a  protection  to  the  public  health 
the  statute  requires  those  engaged  in  the  business  of  curing  the  sick 
to  possess  certain  qualifications.  It  is  not  concerned  with  the  school, 
sect  or  system  of  healing  or  the  method  of  treatment.  One  form  of 
examination  is  required  of  all  sorts  of  healers.  All  applicants  must 
show  themselves  to  be  firmly  grounded  in  the  fundamentals  before 
they  can  be  licensed  to  follow  the  business  of  curing  the  sick.  In 
this  there  is  no  discrimination,  partiality  or  monopoly  as  prohibited  by 
the  constitution.  There  is  discrimination  but  it  goes  to  the  degree  of 
learning  and  not  to  the  school,  sect,  system  or  creed.  Such  laws  do 
not  interfere  with  the  free  exercise  of  religion  or  worship.  Now  this 
interpretation  of  the  law  does  not  justify  healing  commercially  for 
hire  under  the  cover  of  a  religious  exercise.  Religion  cannot  be  used 
as  a  shield  to  cover  a  business  undertaking.  Again  it  is  not  essential 
that  the  practice  of  medicine  be  considered  from  the  commercial  point 
of  view  alone.  A  legislature  under  the  police  powers  of  a  state  may 
fix  on  any  thing  that  will  reasonably  tend  to  preserve  and  promote  the 
health,  safety  and  morals  of  the  people,  and  make  it  the  criterion  for 
determining  whether  or  not  a  person  is  practicing  medicine.  Thus  a 
statute  may  declare  that  professing  to  heal  or  the  use  of  certain 
titles  constitutes  practicing  medicine.  And  it  is  submitted  that  such  a 
law  would  not  be  interfering  with  the  free  exercise  of  a  religion. 
For  so  long  as  the  law  be  complied  with  as  far  as  the  preventable 


131.  Ch.  144  Mills  Ann.  Stat.  Colo.,  Sec.  6856. 


38 

infectious  and  contagious  diseases  are  concerned  it  matters  not  what 
system  of  healing  may  otherwise  be  employed.  The  idea  in  these  laws 
would  seem  to  be  twofold:  To  prevent  the  spread  of  contagious 
diseases,  and  the  like :  and  to  prevent  impositions  on  the  credulous 
by  empirics  and  frauds.  Any  law  tending  in  this  direction  is  not  an 
interference  with  a  religious  belief  but  is  an  agent  for  the  gradual 
uplift  of  the  whole  social  fabric  and  therefore  constitutional.132 

(g)  Christian  Science. — It  has  come  to  be  the  practice  of  the'  fol- 
lowers of  this  faith  or  school  to  wage  war  against  any  attempt  to  enact 
a  law  that  might  in  any  way  impinge  upon  their  religious  beliefs. 
As  a  consequence  it  has  been  necessary  to  so  amend  any  proposed 
practice  act  as  to  exempt  such  practitioners  from  their  application. 
This  would  seem  essential  if  a  state  should  desire  to  pursue  such 
a  policy.  For  under  the  broad  language  of  most  statutes  such  sects 
may  well  be  included  within  the  language  "practice  of  medicine,"  and 
without  any  violation  of  any  constitutional  provision  for  the  purpose 
of  guaranteeing  religious  freedom  and  the  like.133 

The  right  of  freedom  of  religious  beliefs  and  worship  is  purely 
personal  and  individual.  No  one  shall  be  affected  in  the  exercise  of 
his  beliefs  and  faith  in  the  Divine  being  so  long  as  the  beliefs  of  the 
church  and  the  exercise  thereof  do  not  jeopardize  others  and  non- 
believers.  The  field  of  personal  opinion  is  inviolable.  The  church  and 
state  must  be  independent.  The  inviolability  of  the  freedom  of  reli- 
gious profession  and  worship  must,  however,  in  no  wise  impair  or 
menace  the  safety  of  the  state  or  the  security  of  its  people  in  their 
health.     And  this  is  the  criterion  in  all  such  matters134 

The  fact  remains  that  there  are  people  who  believe  that  the  divine 
power  may  be  invoked  to  heal  the  sick  and  that  faith  is  all  that  is 
required.  There  are  others  who  believe  that  the  Creator  has  supplied 
the  earth,  nature's  storehouse,  with  everything  that  man  may  want 
for  his  support  and  maintenance,  including  the  restoration  and  preser- 
vation of  his  health,  and  that  he  is  left  to  work  out  his  own  salvation 
under  fixed  natural  laws.  There  are  still  others  who  believe  that 
Christianity  and  science  go  hand  in  hand,  both  proceeding  from  the 


132.  Smith  v.  People  (Colo.),  117  Pac.  612. 

133.  Davis  v.  Beason,  133  U.  S.  333. 
Dent  v.  West  Virginia,  129  U.  S.  114. 
People  v.  Mulford,  125  N.  Y.  Supp.  680. 

In  re  First  Church  of  Christ  Scientist,  6  Pa.  Dist.  Rep.  745. 
People  v.  Pierson,  176  N.  Y.  201. 

134.  Opinion  of  Freschi,  C.  M.,  New  York  v.  Cole,  City  Magistrate's  Court  of 

the  City  of  New  York,  First  Division,  Second  District,  Feb.  11,  1911; 
aff'd  People  v.  Cole  (N.  Y.)   148  N.  Y.  Supp.  708. 


39 

Creator,  and  that  science  is  but  the  agent  of  the  Almighty  through 
which  He  accomplishes  results,  and  that  both  science  and  divine 
power  may  be  invoked  together  to  restore  diseased  and  suffering 
humanity.133.  In  all  this  no  limitation  is  placed  upon  the  power  of 
the  mind  over  the  body,  the  power  of  faith  to  dispel  disease,  or  the 
power  of  the  Supreme  Being  to  heal  the  sick.  Be  all  this  as  it  may, 
it  is  submitted  that  a  person  can  no  more  endanger  the  health  and 
safety  of  a  state  in  carrying  out  his  peculiar  ideas  as  to  sickness  and 
diseases  than  another  can  corrupt  the  morals  of  a  community  by 
polygamous  practices  under  the  guise  of  a  religious  belief.  Both  such 
individuals  are  amenable  to  the  laws  of  the  state.  In  all  matters  of 
health  and  morals  the  state  is  supreme.  The  maxim  "Sic  utere  tuo  lit 
alienum  non  laedas''  is  the  level  by  which  all  such  affairs  may  best  be 
adjusted.  And  it  is  precisely  here  that  it  would  seem  the  Supreme 
Court  of  Rhode  Island  fell  into  error.130 

The  "Great  Physician"  in  advocating  the  efficacy  of  prayer  and 
faith  did  not  deny  the  existence  of  disease  and  death  as  we  under- 
stand such  things.  The  Supreme  Court  of  Rhode  Island  should  have 
borne  this  in  mind.137 

Religious  belief  is  no  excuse  for  an  unlawful  act.  No  person  under 
the  guise  of  the  practice  of  the  principles  and  tenets  of  any  church 
may  violate  the  law  of  the  land.138 

Suppose  one  believed  that  human  sacrifices  were  a  necessary  part 
of  religious  worship.  Would  it  be  seriously  contended  that  the  civil 
government  under  which  he  lived  could  not  interfere  to  prevent  a 
sacrifice?  Or  if  a  wife  religiously  believed  it  was  her  duty  to  burn 
herself  upon  the  funeral  pyre  of  her  dead  husband,  would  it  be  beyond 
the  power  of  the  civil  government  to  prevent  her  carrying  out  her 
belief  merely  because  of  the  sacred  rights  of  individual  liberty?  To 
permit  this  would  be  to  make  the  professed  doctrines  of  religious 
belief  superior  to  the  law  of  the  land  and  in  effect  to  permit  every 
citizen  to  become  a  law  unto  himself.  Government  could  exist  only 
in  name  under  such  circumstances.139 

Moreover  to  permit  this  would  be  contrary  to  the  federal  constitu- 
tion itself  which  provides  that  the  constitution,  the  treaties  made  pur- 
suant thereto,  and  the  laws  of  Congress  shall  be  the  supreme  law  of 


135.  People  v.  Pierson,  176  N.  Y.  201. 

136.  People  v.  Mylod,  20  R.  I.  632. 

137.  Ex  parte  Bohannon  (Cal.),  Ill  Pac.  1039. 

138.  United  States  v.  Reynolds,  98  U.  S.  145. 
Dent  v.  West  Virginia,  129  U.  S.  114. 

139.  United  States  v.  Reynolds,  98  U.  S.  145-166. 


40 

the  land.140  And  each  state  constitution  together  with  the  laws  of  the 
several  legislatures  established  thereunder  are  paramount  within  each 
of  those  jurisdiction.  It  has  been  proven  unwise  to  exempt  corpora- 
tions and  the  like  from  taxation. 

In  1279,  under  Edward  III,  the  statute  of  mortmain  was  enacted 
to  restrain  the  powerful  religious  corporations  and  to  compel  them 
to  bear  their  just  share  of  the  taxes.  Our  nation  was  founded  on  the 
principle  of  "equal  rights  to  all  and  special  privilege  to  none."  These 
points  should  be  given  due  consideration  in  those  states  in  which 
either  the  courts  or  the  legislatures  are  granting  exemptions  and  privil- 
eges to  one  of  the  greatest  money  making  corporations  of  the  day. 
The  Christian  Scientist  has  the  right  to  believe  that  he  can  heal  by 
prayers.  But  in  soliciting  patients  by  advertisements  and  in  practic- 
ing for  hire  he  is  exceeding  any  prerogative  which  may  be  reserved 
him  under  a  constitution.  He  must  subordinate  his  beliefs  to  the 
rights  of  the  community  and  of  the  state  as  an  entity.  No  law  is  in 
contravention  of  any  constitutional  guaranty  which  inhibits  such  sects 
from  jeopardizing  the  health  and  well-being  of  the  community  at 
large.     "Salus  populi  est  suprema  lex." 

Part  II. — Under  State  Constitutions 
§   17.— Medical  Practice  Acts  Under  State  Constitutions 

The  legislatures  !under  some  state  constitutions  are  expressly 
empowered  to  enact  laws,  prescribing  qualifications  affecting  practi- 
tioners of  medicine,  or  in  some  way  to  benefit  the  public  health.141 

But  irrespective  of  these  express  constitutional  provisions  the  gen- 
eral police  power  vested  in  a  legislature  is  sufficient  for  the  enact- 
ment of  these  medical  practice  acts.142  And  these  laws  have  generally 
been  upheld  under  the  several  state  constitutions  as  they  have  under 
the  federal  constitution. 

However,  there  are  one  or  two  jurisdictions  which  would  seem  to 
deny  the  validity  of  these  laws.  Among  these  are  Kentucky  and  North 
Carolina. 

1.  Medical  Practice  Acts  Invalid.     Minority  View 
The  charter  of  the   North   Carolina  State  Medical   Society  was 
amended143  by  defining  the  practice  of  medicine  and  surgery  to  be 
the  management  "for  a  fee  or  reward  of  any  case  of  disease  physical 


140.  Art.  6,  Ch.  2,  United  States  Constitution. 

141.  La.  178;  Tex.  16,  21;  Wash.  20,  2;  S.  C.  8,  10;  Del.  12,  1. 

142.  Logan  v.  State    (Texas)    5  Tex.  App.  306. 

143.  Acts  of  North  Carolina  for  1903. 


41 

or  mental,  real  or  imaginary,  with  or  without  drugs,  surgical  opera- 
tions, surgical  or  mechanical  appliances,  or  by  any  other  method 
whatsoever."  The  Supreme  Court  of  North  Carolina  held  this  act 
to  be  unconstitutional144  on  the  ground  that  it  was  class  legislation. 
The  court  construed  the  section,  cited  "ut  supra,"  in  accordance  with 
whether  or  no  a  fee  was  charged,  as  having  two  meanings,  and  then 
asked  where  was  the  protection  to  the  public  if  such  a  treatment  is 
valid  when  done  without  a  fee  or  reward.  It  was  argued  further  that 
in  forbidding  all  treatment  of  all  diseases,  mental  or  physical,  without 
surgery  or  medicine,  or  by  any  other  method  for  a  fee  or  reward 
except  by  a  regularly  licensed  physician  under  the  law  the  legislature 
attempted  to  confer  a  monopoly  on  those  so  licensed.  And  this  the 
court  said  was  forbidden  by  the  constitution.  Nor  would  an  exam- 
ination of  the  character  of  those  using  methods  of  treatment  not 
requiring  much  skill  and  learning  be  warranted  by  any  legitimate  exer- 
cise of  the  police  power.  The  court  did  recognize  that  the  medical 
profession  is  one  requiring  the  highest  skill  and  learning  and  that  the 
public  are  entitled  to  know  that  those  holding  themselves  out  as  mem- 
bers of  the  profession  are  competent  and  duly  licensed  as  such,  but 
went  no  further.  In  taking  this  position  it  evidently  escaped  the 
court's  attention  that  the  "practice  of  medicine"  as  defined  by  this  law 
was  to  create  and  maintain  a  uniform  standard.  For  by  it  any  who 
desired  to  practice  for  a  fee  must  be  licensed  after  having  complied 
with  identical  requirements.  Thus  the  incompetents  and  the  mass  of 
the  unscrupulous  and  fraudulent  would  be  precluded  from  practic- 
ing, at  least  openly.  Not  only  because  of  their  failure  to  qualify  but 
because  they  could  not  charge  a  fee  legally.  To  this  extent,  then,  the 
public  would  be  benefited.  The  point  as  to  the  fee  was  inserted  simply 
to  facilitate  prosecutions  for  violations  of  the  law.  It  did  not  create 
two  classes  because  those  who  had  not  qualified  would  not  practice 
gratuitously.145 

2.  Medical  Practice  Acts  Are  Valid  Under  the  Several  State 

Constitutions 

This  case  with  one  or  two  others  are  to  all  practical  purposes 
pariahs  since  they  run  directly  counter  to  the  mass  of  well-considered 
opinions  which  uphold  apparently  analogous  laws.146 


144.  State  v.  Biggs,  133  N.  C.  729,  46  S.  E.  401,  64  L.  R.  A.  139. 

145.  Smith  v.  State  (Ala.),  63  So.  28. 

146.  State  v.  Vandersluis,  42  Minn.  129,  43  N.  W.  789. 
State  v.  Carey,  4  Wash.  424,  30  Pac.  729. 
People  v.  Reetz,  127  Mich.  87,  86  N.  W.  396. 

Webster  v.  State  Board  of  Health,  130  Ky.  191,  113  S.  W.  415. 


42 

That  the  legislature  may  prescribe  such  reasonable  conditions  on 
the  right  to  practice  medicine  as  will  exclude  .those  who  are  unfitted 
is  so  well  settled  by  decisions  of  the  courts  as  to  be  no  longer  an 
open  question.147  In  such  an  exercise  of  power  the  legislature  may 
require  as  a  condition  of  the  right  to  practice  that  each  applicant  shall 
procure  a  license.  It  may  designate  some  officer  or  board  to  issue  the 
license  and  to  determine  whether  an  applicant  possesses  the  qualifi- 
cations required  to  entitle  him  to  it.  The  requisite  qualifications  may 
be  prescribed  and  a  means  of  ascertaining  whether  or  no  an  applicant 
possesses  them  may  be  designated.  It  is  for  the  legislature  and  not 
for  the  courts  to  determine  these  things. 14S 

3.  Legislatures  Are  Limited  by  the  Rule  of  Reason 
It  would  seem  that  the  only  limit  to  the  legislative  power  in  pre- 
scribing these  conditions  to  the  right  to  practice  a  given  profession  is 
that  they  shall  be  reasonable.  And  as  to  this  the  courts  must  judge. 
Reasonable  does  not  mean  expedient.  Nor  does  the  term  connote  such 
as  a  court  might  impose  were  it  called  on  to  prescribe  the  conditions. 
Nor  yet  need  they  be  the  wisest  and  best  that  might  be  adopted.  But 
reasonable  when  applied  to  these  conditions  would  seem  to  mean  that 
these  must  be  fit  and  appropriate  to  the  end  in  view,  to  wit:  the 
protection  of  the  public.  And  they  must  be  manifestly  adopted  in 
good  faith  for  that  purpose.  For,  if  a  condition  should  be  clearly 
arbitrary  and  capricious,  and  especially  if  it  appeared  that  it  must 
have  been  adopted  for  some  other  purpose;  such  for  instance  as  to 
benefit  or  favor  some  person  or  class  of  persons — then  it  would  most 
certainly  not  be  reasonable.  Such  would  be  beyond  the  power  of  the 
legislature  to  impose  and  would  therefore  be  unconstitutional.149  It 
is  submitted  that  a  great  deal  of  the  so-called  sect  legislation,  that  is, 
the  legislation  favoring  the  alleged  different  schools  of  medicine,  might 
very  well  be  held  unconstitutional  on  this  same  principle.  For  it 
would  seem  unfair  to  enact  a  law  requiring  the  so-called  "regular" 
to  comply  with  the  highest  educational  tests  in  order  to  practice  medi- 
cine and  yet  have  other  laws  under  which  others,  seemingly  less  fitted 
from  a  scientific  point  of  view,  may  reap  identical  benefits  and  at  less 
cost  to  themselves  in  every  way. 


147.  State  v.  Vandersluis,  42  Minn.  129. 
Chenoweth  v.  State  (Colo.),  135  Pac.  771. 

148.  State  v.  Vandersluis,  42  Minn.  129. 
State  v.  Carey,  4  Wash.  424. 
People  v.  Reetz,  127  Mich.  87. 

149.  State  v.  Vanderlius,  42  Minn.  129. 
Smith  v.  State  (Ala.),  63  So.  28. 


43 

§    18. — The  Titles  of   Medical   Practice   Acts    Under   Various 
State  Constitutions 

1.  Nearly  all  the  states  have  in  one  form  or  another  some  pro- 
vision in  their  constitutions  respecting  the  titles  of  the  various  laws.150 
The  general  purport  of  such  limitations  is  that  only  one  subject  may 
be  expressed  in  a  title,  and  that  the  subject  matter  must  be  clearly 
set  forth  plainly  showing  the  contents  of  the  Act. 

The  courts  have  been  fairly  liberal  in  construing  medical  practice 
acts  and  have  usually  held  their  titles  sufficient.  The  practice  of  medi- 
cine being  a  broad  field,  a  court  has  considerable  room  for  interpreta- 
tion and  may  thus  reconcile  subjects  apparently  not  germane  to  the 
supposed  purport  of  a  law.  For  such  a  law  a  title  need  not  be  com- 
plex, simple  language  is  quite  sufficient,  and  will  usually  be  held  to 
carry  with  it  the  general  subject  matter  of  a  medical  practice  act.151 

2.  Itinerant  Vendors. — Many  statutes  require  itinerant  physicians 
and  vendors  of  drugs  to  secure  a  license  prior  to  carrying  on  their 
trade,  or  some  regulation  of  this  nature.152 

Such  a  provision  falls  clearly  within  the  police  power  of  a  state. 
If  the  subject  of  the  act  be  expressed  in  the  title  in  general  terms  it 
is  sufficient.  The  right  to  prescribe  medicines  for  the  cure  of  dis- 
eases and  to  administer  them  falls  clearly  within  the  practice  of  medi- 
cine. And  the  regulation  of  the  sale  of  drugs  and  nostrums  by 
itinerant  vendors  as  clearly  falls  within  the  purpose  of  such  an  act 
as  expressed  in  its  title.158 

It  can  hardly  be  denied  that  if  the  general  purpose  of  an  act  is 
to  protect  the  public  from  unskilled  and  incompetent  practitioners  a 
provision  relating  to  itinerant  vendors  of  drugs  would  not  be  germane 
thereto.  These  vendors  who  undertake  to  prescribe  and  effect  cures 
with  the  nostrums  which  they  sell  are  in  the  same  category  with 
persons  who  without  having  had  their  qualifications  tested  undertake 
to  treat  disease  by  the  use  of  compounds  sold  by  others.  Most  titles 
are  sufficiently  broad  to  include  both.154 

3.  Penalties. — Generally  these  need  not  be  expressed  in  a  title. 
And  this  is  particularly  true  in  regard  to  an  act  regulating  the  practice 
of  medicine.    For  the  very  fact  that  the  legislation  as  expressed  in  the 


150.  Ala.  45 ;  Cal.  4,  24;  Colo.  5,  21 ;  Del.  2,  16;  Fla.  3,  16;  Ga.  3,  7,  8;  Ida.  3,  16; 

111.  4,  13 ;  Ind.  4,  19 ;  Iowa  3,  29 ;  Kan.  2,  16 ;  Ky.  51 ;  La.  31 ;  Mich.  4,  20 ;  ■ 
N.  J.  4,  7,  4 ;  Ore.  4,  20 ;  Wyo.  3,  24. 

151.  Harding  v.  People,  10  Colo.  387,  15  Pac.  727. 

152.  Sec.  11,  Illinois  Medical  Practice  Act,  1887. 

Act  No.  49,  Louisiana  Medical  Practice  Act,  1894. 

153.  People  v.  Blue  Mountain  Joe,  129  111.  370,  21  N.  E.  923. 

154.  State  v.  Lee,  106  La.  400,  31  So.  14. 


44 

title  is  the  examination  and  licensing  of  physicians  and  surgeons  would 
be  sufficient  to  carry  with  it  the  idea  that  the  consequences  of  prac- 
ticing without  complying  with  the  act  were  also  provided  therein.153 
A  title  containing  sixty-three  words  is  not  open  to  criticism  for 
brevity  or  vagueness.  The  purpose  of  an  act  may  very  well  be  indi- 
cated in  the  phrase  "to  regulate  the  practice  of  medicine  and  surgery." 
Nothing  further  is  required.156 

§  19. — Medical  Boards  Are  Generally  Upheld  in  the  States 
1.  The  Method  of  Appointing  Thereto. —  (a)  State  Boards  of 
Medical  Examiners  vested  with  power  to  regulate  and  supervise  the 
practice  of  medicine  are  valid  alike  under  both  federal  and  state  con- 
stitutions. And  it  matters  not  as  to  the  method  of  appointment  thereto 
or  as  to  the  personnel  of  which  its  membership  is  composed.  It  is  only 
necessary  that  the  legislature  use  reasonable  means  and  that  the  board 
act  fairly  in  enforcing  the  law. 

A  legislature  has  the  undoubted  right  to  attach  as  a  condition  pre- 
cedent to  the  privilege  or  right  of  any  one  to  practice  medicine  that 
he  should  be  subjected  before  doing  so  to  a  prior  examination  as 
to  his  qualifications.  It  therefore  has  as  a  consequence  the  right  to 
select  the  particular  agencies  to  which  may  be  delegated  the  right 
and  duty  of  testing  those  qualifications.  And  a  court  cannot  control 
the  selection  of  those  agencies  by  the  general  assembly.157 

(b)  When  Appointed  by  a  Governor. — Such  acts  are  generally  not 
in  contravention  of  a  provision  of  a  state  constitution  because  the 
governor  has  been  vested  with  the  appointing  power  as  regards  the 
State  Board  of  Medical  Examiners.  For  a  legislature  may  create  a 
new  office  to  be  filled  by  the  governor  and  only  limiting  him  by 
designating  a  certain  class  from  which  to  select  the  incumbent.  And 
in  thus  selecting  certain  schools  of  medicine  from  which  to  choose 
the  members  of  a  board  of  examiners  the  legislature  is  not  bestow- 
ing a  special  privilege  upon  any  given  class.  It  is  simply  using  a 
convenient  method  to  obtain  competent  examiners.  And  should  it 
be  a  special  privilege  it  would  not  be  unconstitutional  for  the  legis- 
lature is  simply  exercising  the  police  powers  of  a  state.  And  a  state 
may  choose  its  own  agents  in  its  own  way.158 


155.  Comm.  v.  Clymer,  217  Pa.  302,  66  Atl.  560. 

Act  of  May  18,  Pennsylvania  Medical  Practice  Act,  1893. 

156.  In  re  Campbell,  197  Pa.  581,  47  Atl.  860. 

Allopathic  State  Board  of  Medical  Examiners  v.  Fowler,  50  La.  Ann.  1358. 

157.  Allopathic  Board,  etc.  v.  Fowler,  50  La.  Ann.  1358,  24  So.  809. 

158.  In  re  Campbell,  197  Pa.  581,  47  Atl.  860. 
Green    v.    Hodges    (Kan.),    138   Pac.   605. 


45 

(c)  Governor  to  Nominate  Only. — Nor  would  a  provision  similar 
in  its  purport  render  an  act  unconstitutional  or  be  in  itself  invalid 
because  apparently  in  conflict  with  a  particular  section  of  a  state 
constitution.  As  for  instance  that  the  "governor  shall  nominate  and 
by  and  with  the  consent  of  the  senate  appoint."159  For  such  consti- 
tutional provisions  do  not  apply  to  officers  created  by  statute  to  be 
filled  as  therein  otherwise  provided.100 

(d)  Appointed  by  State  Medical  Societies. — It  is  entirely  compe- 
tent that  a  state  in  the  exercise  of  its  police  power  should  confer  the 
exclusive  power  to  appoint  boards  of  examiners  on  certain  medical 
societies.  Such  a  procedure  does  not  exceed  the  constitution  in  that 
corporations  may  be  created  by  general  laws  but  not  by  special  act.101 

A  provision  granting  to  a  certain  society  the  privilege  of  selecting 
three  members  of  an  examining  board  is  not  vesting  in  such  a  society 
a  special  privilege  in  a  constitutional  sense.102  For  such  a  power  to 
appoint  is  in  the  nature  of  a  duty  rather  than  a  privilege.  It  may 
not  be  said  to  constitute  a  special  privilege  any  more  than  in  the  many 
instances  when  non- judicial  functions  are  imposed  on  judicial  officers 
or  non-executive  functions  are  cast  on  the  executive  or  when  men 
by  reason  of  their  learning  are  designated  to  perform  a  service  to 
the  public.     Such  measures  therefore  are  not  unconstitutional.163 

And  that  a  given  society  may  choose  members  of  its  own  society, 
for  the  board  does  not  in  itself  render  the  law  unconstitutional.104 
For  a  constitution  does  not  require  that  each  school  of  medicine  be 
represented  equally  on  an  examining  board.  It  is  not  attempted  to 
establish  a  government  that  will  be  administered  absolutely  free  from 
prejudice.  In  such  cases  the  restraint  of  an  official  oath  is  the  chief 
safeguard  against  the  exercise  of  an  undue  prejudice.163 

These  laws  are  enacted  in  the  interest  of  the  public  health.  And 
as  a  consequence  the  mode  of  creating  a  board  and  the  like  to  enforce 
such  laws  cannot  be  too  closely  defined.  A  legislature  must  be  allowed 
some  liberty  in  order  that  the  best  men  for  such  a  position  may  be 
selected. 


159.  Art.  4,  Sec.  6,  Colorado  Constitution. 

160.  Brown  v.  People,  11  Colo.  109,  17  Pac.  104. 
State  v.  Carey,  4  Wash.  424,  30  Pac.  729. 
People  v.  Hasbrouck,  11  Utah  291,  39  Pac.  918. 

161.  Ex  parte  Frazer,  54  Cal.  94. 

162.  Sec.  5596,  Indiana  Code,  Medical  Practice  Act. 
Art.  I,  Sec.  23,  Indiana  Constitution. 

163.  Ferner  v.  State,  151  Ind.  249,  51  N.  E.  360. 

164.  Ex  parte  Gerino,  143  Cal.  412,  77  Pac.  166,  66  L.  R.  A.  249. 

165.  Brown  v.  People,  11  Colo.  109,  17  Pac.  104. 


46 

2.  "Unprofessional  Conduct."  Term  Construed. — Among  the  sev- 
eral duties  devolving  upon  a  board  of  examiners  there  is  one  or  per- 
haps it  should  be  said  there  are  three,  which  involve  the  exercise  of 
a  peculiar  degree  of  discretion.  These  are  in  the  refusal  to  license, 
and  in  the  suspension  or  revocation  of  a  license  for  unprofessional 
conduct. 

(a)  In  some  states  this  term  has  been  deemed  insufficient  to  sup- 
port a  revocation.  Again  in  others  the  words  have  been  defined  either 
by  the  legislature  or  by  judicial  interpretation  as  sufficient.  Now 
while  it  may  be  true  that  this  language  has  no  common  law  signifi- 
cation yet  it  would  seem  that  no  court  is  so  restricted  but  what  it  may 
in  some  way  place  an  interpretation  on  the  words  that  would  uphold 
the  provision.  As  we  have  said,  this  some  states  have  done.  Others 
however,  have  flatly  refused  to  attempt  a  definition  and  have  held 
the  provision  void  as  being  too  indefinite.166 

(b)  It  is  said  such  language  does  not  sufficiently  advise  a  physi- 
cian in  advance  of  what  act  or  acts  may  be  in  violation  of  its  pro- 
visions. He  is  not  told  what  is  lawful  or  unlawful.  He  might  do  an 
act  which  he  regarded  as  entirely  proper  which  neither  violated  moral 
law  or  involved  turpitude.  Still  such  acts  might  in  the  opinion  of 
the  state  board  amount  to  unprofessional  conduct,  or  be  calculated 
as  such  as  would  deceive  or  defraud  the  public.  The  board  is  to 
have  the  right  after  a  physician  has  done  some  act  to  determine  what 
its  effect  is  to  be.  And  if  in  its  judgment  he  should  be  deprived  of 
the  right  to  practice  his  profession  it  can  inflict  such  a  punishment 
upon  him.  The  statute  does  not  advise  the  physician  as  to  what  is 
unprofessional  conduct  and  yet  he  is  considered  as  being  knowingly 
or  intentionally  guilty  of  it.  For  these  reasons  certain  jurisdictions 
have  declared  the  exercise  of  this  power  to  be  invalid.167 

(c)  But  the  majority  would  seem  to  uphold  this  and  apparently 
similar  language  which  might  likewise  be  termed  indefinite.  Certain 
expressions  have  been  handed  down  through  the  law  for  centuries 
and  have  received  such  a  standard  of  interpretation  and  understand- 
ing that  they  no  longer  are  subject  to  the  charge  of  being  indefinite. 
"Gross  immorality"  is  a  term  which  has  been  used  and  has  received 
adjudication  at  the  hands  of  a  great  many  courts.  "Gross"  has  been 
taken  to  mean  wilful,  flagrant,  shameful  with  respect  to  the  office 


166.  Matthews  v.  Murphy,  23  Ky.  750,  63  S.  W.  785,  54  L.  R.  A.  415. 
Chenoweth  v.  State  (Colo.),  135  Pac.  771. 

Graeb  v.  State  (Colo.),  135  Pac.  776. 

167.  Matthews  v.  Murphy,  23  Ky.  750,  63  S.  W.  785,  54  L.  R.  A.  415. 


47 

involved.  Or  as  would  render  a  person  unfit  to  hold  a  license  and 
the  authority  to  act.  These  expressions  "gross  immorality,"  "gross 
misbehavior,"  "moral  turpitude"  and  the  like,  have  received  a  great 
many  interpretations.  But  they  have  nearly  always  been  sustained 
by  the  court.  In  but  few  cases  have  they  been  held  so  indefinite  as 
to  preclude  action  against  the  person  guilty  thereof.108 

(d)  Act  Must  Be  Dishonorable. — Similar  language  has  been  con- 
strued as  referring  to  offenses  similar  in  nature  to  a  felony  or  an 
abortion.  The  act  must  be  of  such  a  nature  as  would  deceive  or 
defraud  the  ignorant  and  it  must  be  dishonorable.109 

(e)  Act  Should  Involve  Moral  Turpitude  or  the  Like. — "Grossly 
immoral  and  unprofessional  conduct"  excludes  the  idea  that  a  license 
may  be  revoked  for  trivial  reasons  or  for  a  violation  of  what  might 
be  regarded  as  mere  professional  ethics.  Such  language  would  seem 
to  be  co-terminous  with  "immoral  conduct."  All  such  language  would 
seem  to  import  therein  an  element  of  moral  turpitude  or  a  disregard 
of  the  settled  ideas  or  principles  of  morality.  And  unprofessional 
conduct  should  be  taken  to  mean  that  which  is  by  general  opinion 
considered  grossly  unprofessional  because  immoral  or  dishonorable. 
It  would  seem  too  well  settled  to  admit  of  discussion  that  a  state  may 
in  the  exercise  of  its  police  power  vest  in  a  board  the  right  to  revoke 
the  license  of  a  physician  who  has  become  disqualified  either  morally 
or  intellectually.170 

3.  Revocation  of  a  License  Not  a  Judicial  Act 
(a)  Judicial  Powers. — It  is  frequently  contended  that  a  given  med- 
ical practice  act  is  repugnant  to  a  state  constitution  in  that  judicial 
powers  are  conferred  on  the  medical  board.  Such  powers  it  is  main- 
tained belong  to  the  courts  alone.  It  may  be  conceded  that  the 
authority  vested  in  medical  boards  by  these  acts  includes  the  power 
to  examine  into  and  decide  questions  requiring  the  exercise  of  judg- 
ment. But  it  does  not  follow  that  the  exercise  of  such  authority  is 
necessarily  the  exercise  of  judicial  power.    This  power  to  pass  upon 


168.  Rose  v.  Baxter,  reported  without  comment  in  81  Ohio  St.  522,  91  N.  E.  1138; 
reported  in  7  Nisi  Prius   (N.  S.)    132. 

169.  Sec.  11,  Texas  Medical  Practice  Act,  April  17,  1907. 
Morse  v.  State  Board,  etc.  (Tex.),  122  S.  W.  446. 

170.  Aiton  v.  Board,  etc.  (Ariz.),  114  Pac.  962. 
Meffert  v.  Board,  etc.,  66  Kan.  710. 

State  v.  Board,  34  Minn.  391. 

People  v.  Apfelbaum  (111.),  95  N.  E.  995. 

But  see 

Chenoweth  v.  State  (Colo.),  135  Pac.  771. 


48 

the  qualifications  of  physicians  and  applicants  who  in  pursuance  with 
the  law  come  before  the  board  for  their  several  purposes  must  neces- 
sarily be  committed  to  some  board  or  body  other  than  the  legislature. 
It  may  be  characterized  as  administrative  rather  than  judicial.171 

(b)  Quasi- Judicial  Powers. — In  considering  the  objection  that 
these  acts  invest  a  board  with  judicial  powers  there  would  seem  to 
be  a  clear  misapprehension  of  the  law.  The  legislature  has  the  right 
to  regulate  the  practice  of  those  trades  and  professions  requiring 
particular  skill  and  learning  and  this  would  seem  incontrovertible. 
And  therefore  a  statute  tending  to  the  preservation  of  the  health  of 
a  community  is  an  exercise  of  this  prerogative  by  the  legislature.  It 
is  an  acknowledged  part  of  that  undefined  power  inherent  in  a  state 
denominated  the  police  power.  Thus  a  legislature  will  in  the  interests 
of  society  pass  a  law  to  prevent  the  imposition  of  quacks,  adventurers 
and  charlatans  upon  the  ignorant  and  credulous.  To  provide  for  a 
proper  enforcement  thereof  the  legislature  creates  a  board  vesting  in 
it  these  several  powers  and  duties  which  partake  of  both  a  judicial 
and  administrative  nature  and  may  therefore  be  termed  quasi- judicial. 
Such  a  vesting  of  power  is  entirely  constitutional.172 

(c)  "Notice." — But  the  right  to  practice  medicine  is  a  valuable 
right  which  cannot  be  taken  away  without  due  process  of  law.  This 
would  seem  to  require  notice  of  the  charge  and  an  opportunity  to 
defend.  This  does  not  mean  procedure  must  be  provided  as  in  a 
court  at  law.  It  simply  is  an  assertion  of  the  principle  that  no  man 
may  be  disturbed  in  the  possession  of  a  valuable  right  no  matter  how 
acquired  without  an  opportunity  to  prove  his  right  to  remain  in  pos- 
session and  the  exercise  of  such  right.173 

(d)  Revocation  by  a  Court. — The  power  to  revoke  the  license  or 
certificate  of  a  physician  need  not  necessarily  be  vested  in  the  board 
of  examiners.  This  same  power  may  be  vested  in  any  other  body  as 
for  example  a  court  of  proper  jurisdiction  and  regularly  established 
under  a  constitution  of  any  state.174 


171.  France  v.  State,  57  Ohio  St.  1,  47  N.  E.  1041. 

172.  State  v.  Hathaway,  115  Mo.  36,  215  S.  W.  1081. 
Matthews  v.  Hedlund   (Neb.),  119  N.  W.  17. 
Smith  v.  State,  etc.  (la.),  117  N.  W.  1116. 
State  v.  Board,  34  Minn.  387. 

Meffert  v.  Packert,  66  Kan.  710,  1  L.  R.  A.  (N.  S.)  811. 
Kennedy  v.  Board,  145  Mich.  241,  108  N.  W.  730. 
State  v.  McCrary  (Ark.),  130  S.  W.  544. 

173.  Smith  v.  Board  (la.),  117  N.  W.  1116. 

174.  Ch.  422,  Laws  of  Wisconsin  for  1905. 

State  v.  Schaeffer,  113  Wis.  595,  89  N.  W.  481. 


49 

(e)  Jury  Trial. — A  party  on  trial  on  a  charge  of  unprofessional 
conduct  is  not  entitled  to  a  jury  as  of  right.  It  would  seem  that  trial 
by  jury  is  guaranteed  only  on  those  classes  of  cases  when  that  right 
existed  at  common  law.  This  would  apparently  preclude  the  right 
to  such  a  demand.  Moreover  in  the  revocation  of  a  license  as  for 
fraud  the  action  is  in  its  nature  equitable.  Such  actions  would  not 
seem  to  require  the  aid  of  a  jury  and  would  negative  the  demand 
therefore  as  a  matter  of  right.175 

§  20. — The  Validity  of  Different  Statutory  Provisions  Under 
the  Several  State  Constitutions 

1.  No  "School  of   Medicine"  to  be  Preferred  on  a  Medical 

Board 

In  certain  states  there  are  constitutional  provisions  inhibiting  any 
preference  being  shown  by  law  to  any  "school  of  medicine"  in  the 
creation  of  a  medical  board.176 

But  the  creation  of  medical  boards  representing  certain  only  of 
these  so-called  schools  would  not  controvert  such  a  provision.  And 
the  fact  that  all  practitioners  must  be  licensed  by  some  one  of  these 
boards  irrespective  of  his  own  views  would  not  be  subversive  of  this 
principle.  That  is,  a  law  which  created  two  or  more  partisan  boards 
thereby  failing  to  recognize  one  or  more  "schools"  would  not  be 
invalid  because  the  members  of  the  unrecognized  "schools"  would  be 
forced  to  apply  to  a  possibly  hostile  board  for  licensure.177 

2.  The  Power  to  Pass  on    the  Qualifications  of  Applicants 

and  Colleges 
A  statute  which  vests  in  a  medical  board  the  power  to  pass  alike 
on  the  qualifications  of  applicants  and  colleges  is  not  extending  special 
privileges  and  immunities  in  that  it  may  refuse  certificates  to  gradu- 
ates of  schools  not  in  good  standing  and  grant  them  to  graduates  from 
schools  which  it  has  determined  to  be  in  good  standing.178 


175.  Gulley  v.  Territory  (Okla.),  91  Pac.  1037. 
But  see 

Chenoweth  v.  State  (Colo.),  135  Pac.  771. 
Graeb  v.  State  (Colo.),  135  Pac.  776. 

176.  Texas  Constitution,  Sec.  31,  Art.  16. 
Louisiana  Constitution,  Sec.  178. 
Washington  Constitution,  Sec.  20,  2. 

177.  Stone  v.  State,  48  Tex.  Cr.  Rep.  114,  86  S.  W.  1029. 
Smith  v.  State   (Ala.),  63   So.  28. 

178.  Ch.  17,  Title  12,  Sec.  2582,  Iowa  Code ;  Art.  I,  Sees.  6,  8,  Iowa  Const. 


50 

A  law  of  this  nature  is  general  and  uniform  in  its  application.  Not 
that  it  operates  upon  every  person  within  a  state,  but  because  every 
person  who  is  brought  within  the  relation  and  circumstances  pro- 
vided under  the  law  is  equally  affected  thereby.  Thus  it  is  general 
and  uniform  in  its  operation  upon  all  persons  in  like  situations.  Nor 
would  the  law  be  affected  as  to  its  uniformity  by  the  number  of  per- 
sons within  the  scope  of  its  operations.  To  this  extent  then  such  a 
law  grants  no  privileges  and  immunities  that  do  not  equally  belong 
to  all  citizens.  It  is  therefore  incorrect  to  say  that  a  board  wherein 
this  power  is  vested  may  determine  whether  or  no  a  medical  school 
is  in  good  standing  arbitrarily  and  without  restraint.  No  law  can 
authorize  such  an  action  and  to  do  so  would  clearly  be  illegal.  All 
boards  must  act  under  the  restraints  of  the  law  and  are  required  to 
make  a  proper  inquiry  into  any  matter  which  may  be  before  them 
for  determination.  It  is  not  to  be  presumed  that  a  board  will  act 
arbitrarily  and  without  investigation  and  then  upon  that  presumption 
hold  the  statute  conferring  the  power  in  question  unconstitutional.179 

3.  The  Granting  of  Licenses  by  a  Majority  Vote  of  the  Board 
In  a  provision  that  a  medical  board  of  nine  members  can  grant 
licenses  only  on  the  consent  of  not  less  than  seven  members  the  use 
of  the  noun  "consent"  does  not  give  the  board  arbitrary  and  unreason- 
able power.  Such  a  construction  would  be  highly  improper.  The 
spirit  and  object  of  the  act  is  to  maintain  a  high  standard  in  the  med- 
ical profession,  thereby  protecting  the  people  of  the  state  from  quack- 
ery. It  is  within  the  legislative  discretion  to  require  that  all  or  more 
or  less  than  a  majority  of  its  members  should  participate  in  the 
examination  and  before  issuing  a  certificate  affirmatively  pass  upon 
the  merits  of  each  applicant.  The  requirement  that  at  least  seven  of 
the  nine  members  must  concur  and  approve  is  a  mere  declaration  of 
the  mode  in  which  a  determination  must  be  reached.180 

4.  Time  Limit  for  Registration 
The   fixing  of  a  time  limit   for   registration   is  not  unwise  and 
unreasonable  in  that  it  deprives  a  citizen  of  the  right  to   follow  a 
lawful  occupation.     Such  provisions  have  been  repeatedly  upheld  on 


179.  Iowa  v.  Schrader,  87  Iowa  659,  55  N.  W.  24. 

Ex  parte  Gerino,  143  Cal.  412,  77  Pac.  166,  66  L.  R.  A.  249. 
State  v.  Wilcox,  64  Kan.  789,  68  Pac.  634. 
State  v.  Schmidt,  138  Wis.  53,  119  N.  W.  647. 

180.  Ch.  9,  Laws  of  Minnesota,  1887,  Sec.  3. 
State  v.  Fleischer,  41  Minn.  69,  42  N.  W.  696. 


51 

the  basis  that  it  is  competent  for  a  legislature  to  regulate  the  prac- 
tice of  medicine  and  of  chemistry  in  such  a  way  as  will  not  deprive 
citizens  of  the  right  to  follow  a  lawful  avocation.  And  limiting  the 
term  for  registration  is  not  open  to  this  objection.181 

5.  Requiring  a  Diploma  or  an  Examination  or  Both  Not 

Unreasonable 

The  requirement  that  an  applicant  for  a  license  should  either  pre- 
sent a  diploma  or  submit  to  an  examination  is  not  unconstitutional 
in  that  the  provision  as  to  the  diploma  is  neither  whimsical,  arbitrary 
or  unreasonable.  Such  a  provision  is  quite  germane  to  a  practice 
act  and  clearly  adaptable  to  the  end  in  view,  to  wit,  the  welfare  of 
society.  There  is  no  legal  fault  with  the  legislative  theory  that  it  is 
largely  impracticable  for  an  applicant  to  acquire  in  the  first  instance 
suitable  skill  and  technic  and  adequate  professional  knowedge  by 
himself  or  in  an  office.  The  line  has  to  be  drawn  somewhere  and  so 
long  as  it  is  not  chalked  out  whimsically  and  arbitrarily  at  an  unreason- 
able place  it  is  well  enough — the  legislature  having  plenary  power  in 
such  matters.182 

6.  Determination  of  Requirements 

The  right  to  determine  what  requirements  must  be  met  by  an  appli- 
cant is  within  the  exclusive  province  of  the  legislature.183 

7.  The  Requirement  of  a  License  Fee,  Etc. 

An  act  is  not  discriminatory  and  class  legislation  which  provides 
for  an  examination  of  all  applicants  on  the  payment  of  a  fee.  Nor 
is  the  further  requirement  of  a  diploma  from  some  school  in  good 
standing,  together  with  satisfactory  evidence  of  the  right  of  the 
holder  to  its  possession  objectionable.  Requiring  a  certain  degree  of 
learning  and  skill  as  a  condition  of  being  allowed  to  practice  is 
discrimination  between  those  who  have  and  those  who  have  not  that 
degree  of  learning  and  skill.  Between  those  who  are  and  those  who 
are  not  able  to  acquire  it.  But  the  mere  fact  of  discrimination  in 
such  a  law  is  no  objection  to  it.  If,  however,  there  were  discrimina- 
tion between  persons  or  any  matter  not  pertinent  to  the  legitimate 
purpose  of  the  law,  to  wit,  to  secure  fitness  and  competency  in  those 
who  shall  be  permitted  to  practice,  it  would  be  objectionable.  Such 
for  example,  as  discrimination  as  to  birth,  color  or  religious  belief. 


181.  Gosnell  v.  State,  52  Ark.  228,  12  S.  W.  392. 

182.  State  ex  rel.  Crandall  v.  Mcintosh,  205  Mo.  589,  103  S.  W.  1078. 

183.  State  ex  rel.  Thompson  v.  Board  (Wash.),  93  Pac.  515. 


52 

The  requirement  of  a  diploma  from  some  college  or  learned  society 
in  order  to  practice  medicine  has  been  inserted  in  the  laws  of  many- 
states  and  questioned  in  but  few.  The  fact  of  having  graduated  at 
and  received  a  diploma  from  a  school  or  college  devoted  to  teaching 
the  science  of  medicine  and  surgery  or  dentistry  bears  directly  upon 
the  person's  qualifications  to  practice.  A  legislature  might  make  it 
the  sole  test.  Such  provisions  are  rigorous,  and  they  should  be,  to 
protect  the  public.  There  is  nothing  in  provisions  of  this  nature 
which  can  be  taken  as  otherwise  than  an  attempt  in  good  faith  to 
benefit  the  people  of  any  given  state.184 

8.  Refusal  to  Grant  Certificate  —  Its  Effect 
Neither  the  refusal  to  grant  a  certificate  nor  the  revocation  of  a 
certificate  to  practice  medicine  has  any  retroactive  operation.  Nor  do 
such  penalties  impose  any  new  or  additional  punishment  or  disability 
for  a  past  act.  These  statutes  have  prospective  operation  only  'and 
do  not  purport  to  have  any  retroactive  effect.185 

9.  Limitation  of  Practice 
The  limiting  of  'the  practice  of  dentistry  to  dentists  per  se  or  of 
medicine  and  surgery  to  physicians  is  not  objectionable.     Nor  is  per- 
mitting  enrolled    students    to   practice   under   the    supervision    of    a 
licensed  practitioner  discriminatory.180 

10.  Forbidding  an  Unlicensed  Person  to  Advertise  in  Writing 

as  a  Physician 
A  statute  forbidding  an  unlicensed  person  to  hold  himself  out 
as  a  physician  by  printing,  writing  or  the  like,  does  not 'contravene 
the  constitutional  provision  that,  "No  law  shall  be  passed  to  restrain 
or  abridge  the  liberty  of  speech  or  of  the  press."  Such  prohibitive 
features  in  an  act  do  not  go  to  the  rights  intended  to  be  secured  by 
the  provisions  in  constitutions  as  to  speaking,  (Writing  or  publishing 
one's  sentiments  or  as  to  abridging  or  restraining  the  liberty  of  the 
press.187 


184.  State  v.  Vandersluis,  42  Minn.  129,  43  N.  W.  789. 
State  ex  rel.  Thompson  v.  Board  (Wash.),  93  Pac.  515. 
State  v.  Van  Doran,  109  N.  C.  864,  14  S.  E.  32. 
Ewbank  v.  Turner,  134  N.  C.  77,  46  S.  E.  508. 

Ex  parte  Whitley,  144  Cal.  167,  77  Pac.  879. 
In  re  Roe  Chung  (N.  Mex.),  49  Pac.  952. 

185.  France  v.  State,  57  Ohio  St.  1,  47  N.  E.  1041. 

186.  State  v.  Vandersluis,  42  Minn.  129. 

187.  State  v.  Blair,  92  Iowa  28,  60  N.  W.  486. 


53 

11.  An  Unlicensed  Person  May  Own  and  Manage  a  Dentist's 

Office 

To  own  and  run  property  is  a  natural  right  which  may  be  restricted 
only  by  reasons  of  public  | policy  clearly  discernible.  Nor  may  the 
police  power  of  a  state  be  invoked  to  restrain  a  business  irrespective 
of  its  nature,  especially  when  the  "health,  good  order,  morals,  peace  or 
safety  of  society"  are  not  (injuriously  affected  thereby.  Thus  a  law 
requiring  examination  and  licensure  by  a  Dental  or  Medical  Board 
before  one  could  own  or  run  or  manage  an  office  would  be  invalid  and 
unconstitutional.188 

This,  however,  would  seem  too  broad  a  statement  of  the  law. 
For  it  is  submitted  that  it  is  an  easily  recognized  fact  that  the  moral 
and  physical  welfare  of  ,  the  public  may  be  seriously  endangered  by 
a  person  who  simply  owns  and  manages  a  dental  office — or  a  medical 
office.  It  is  not  sufficient  that  the  employees  therein  be  regularly 
qualified  and  licensed  to  do  the  actual  work.  Such  employees  would 
be  too  easily  influenced  by  their  employer  to  whom  they  must  look 
for  compensation,  to  be  able  to  maintain  the  highest  standard  which 
the  ethics  of  any  ^profession  demands.  A  man  and  particularly  a 
professional  man,  must  be  free  and  untrammelled  when  it  comes  to 
the  determination  of  a  question  in  the  course  of  his  work.  Such  a 
law  is  but  a  step  in  the  direction  of  the  effective  regulation  of  a 
phase  of  the  medical  profession,  which  is  but  too  greatly  given  over 
to  the  spirit  of  commercialism.  There  is  thus  too  much  of  a  resultant 
"laissez-faire"  policy  in  regard  to  any  effective  treatment  of  that  part 
of  society  which  is  subjected  to  the  ministrations  of  such  men.  The 
law  it  would  seem  is  clearly  constitutional. 

12.  Excepting  Physicians  Practicing  at  the  Passage  of  a 

Given  Act 
A  medical  practice  act  does  not  create  a  monopoly  or  perpetuity  in 
excepting  from  its  requirements  physicians  who  were  practicing  on 
or  before  a  given  date.  Such  a  distinction  is  not  unreasonable.  It 
is  always  fair  to  assume  that  some  of  those  engaged  in  the  practice  of 
medicine  at  the  time  a  law  is  enacted  have  already  received  the 
public  approbation.  Again  there  are  others  who  have  proven  them- 
selves incompetent  and  have  therefore  been  stamped  with  the  public 
disapproval.  It  would  be  unfair  to  examine  the  first  class  and  unnec- 
essary to  test  the  latter  as  to  their  mental  fitness.  Each  have  classi- 
fied themselves.    And  surely  the  legislature  may  deem  this  to  be  suffi- 


188.  State  v.  Brown,  37  Wash.  106,  79  Pac.  638. 


54 

cient.  At  any  rate  a  provision  of  this  nature  is  but  an  exercise  of 
the  police  power.  ,  It  is  in  no  sense  the  creation  of  a  monopoly  or 
special  privilege.  The  door  to  the  practice  of  medicine  stands  open 
to  all  who  possess  the  requisite  age  and  good  character.  And  any 
applicant  who  can  pass  the  prescribed  examination  may  enter.189 

13.  Consulting  Physicians  May  be  Excepted 
A  proviso  excepting  a  duly  licensed  physician  of  a  neighboring 
state  when  called  into  any  given  state  on  consultation  from  the  pro- 
visions of  the  law  is  not  an  attempt  to  grant  an  exclusive  privilege 
to  a  fixed  class.190 

The  comity  thus  extended  to  reputable  physicians  is  widely  dif- 
ferent in  its  nature  from  the  attempt  to  grant  a  monopoly  or  the  like 
within  the  meaning  of  any  state  constitution  to  a  restriction  or  pro- 
hibitory law  inserted  through  courtesy  to  sister  states  upon  the 
assumption  that  they  have  provided  amply  for  the  protection  of  the 
health  of  their  citizens  by  legislation  similar  to  that  of  any  given 
state.  There  is  the  further  safeguard  that  a  locally  registered  physi- 
cian alone  has  the  power  to  extend  this  courtesy  to  a  non-resident 
upon  whose  opinions  he  may  place  a  high  estimate.191 

14.  A  "Locus  in  Quo'"  as  a  Determinant  of  Character 
There  is  a  conflict  of  opinion  as  to  whether  or  no  a  provision 
is  constitutional  which  excepts  practitioners  from  the  usual  license  fee 
who  have  pursued  their  profession  for  a  certain  length  of  time  in 
a  given  locality.  In  one  jurisdiction  this  is  held  to  be  unjust  dis- 
crimination in  favor  of  a  special  class192  and  hence  invalid. 

The  weight  of  opinion  though  would  seem  to  be  in  favor  of  its 
validity.193  Moreover  the  argument  in  favor  of  the  validity  would 
seem  to.  be  supported  by  much  the  better  reasoning. 

The  New  Hampshire  case  asserts  that  the  exemption  is  made  to 
depend  not  on  integrity,  education,  and  medical  skill,  but  upon  a  con- 


189.  State  v.  Call,  121  N.  C.  147,  28  S.  E.  517. 

State  v.  Vandersluis,  42  Minn.  129,  43  N.  E.  789. 
State  v.  Hathaway,  115  Mo.  36,  215  S.  W.  1081. 
Ex  parte  Spinney,  10  Nev.  323. 
Freund,  Police  Power,  Para.  711   and  note. 
Ex  parte  Whitley,  144  Cal.  167,  77  Pac.  879. 
Williams  v.  People,  121  111-.  84,  11  N.  E.  881. 
State  v.  Doran  (S.  Dak.),  134  N.  W.  53. 

190.  Art.  1,  Sec.  7,  North  Carolina  Constitution. 

191.  State  v.  Van  Doran,  109  N.  C.  864,  14  S.  E.  32. 

192.  State  v.  Pennoyer,  65  N.  H.  113,  5  L.  R.  A.  709. 

193.  State  v.  Bair,  112  Iowa  466,  4  N.  W.  532. 
State  v.  Carev,  4  Wash.  424,  30  Pac.  729. 


55 

tinuous  dwelling  in  one  place  for  a  certain  time.  This  is  taken  to 
be  an  arbitrary  discrimination  which  permits  some  and  forbids  others 
to  carry  on  their;  business  without  regard  to  their  competency  or  to 
any  material  difference  in  their  situation.  The  test  is  not  merit  but 
unchanged  residence.  This  is  not  the  equality  of  the  constitution. 
The  magnitude  of  the  unequal  burden  is  not  material.  If  any 
unequality  is  permitted  the  discrimination  might  be  made  prohibitory 
and  a  monopoly  of  the  business  given  to  the  physicians  who  have 
resided  in  a  town  or  city  for  a  specified  time.11'4 

The  fallacy  of  such  reasoning  is  patent.  In  passing  on  the  con- 
stitutionality of  an  act  a  court  may  not  consider  what  might  be  the 
result  of  the  act.  They  are  concerned  only  with  the  actual  facts. 
Again,  in  construing  a  statute  a  court  is  forced  to  give  the  language 
thereof  a  favorable  interpretation  to  the  end  that  it  may  be  held 
valid.  These  are  familiar  rules  which  need  no  support.  Moreover 
the  court  would  seem  to  have  overlooked  a  distinction  which  can 
be  recognized  in  all  the  affairs  of  life.  For  will  any  one  contend 
for  a  moment  that,  everything  else  being  equal,  the  permanent  resi- 
dent of  a  locality  is  not  likely  to  be  superior  in  capacity  and  morals 
to  him  who  has  no  fixed  professional  abiding  place?  That  there 
may  be  and  are  exceptions  is  readily  conceded,  but  the  legislature  was 
not  forced  to  adopt  an  absolutely  infallible  rule.  Again,  if  within  the 
ordinary  experience  of  men,  and  as  a  matter  of  common  operation, 
physicians  of  learning,  skill,  and  character,  are  generally  perma- 
nently located,  and  seldom  change  the  places  where  their  profession 
is  followed,  as  appears  to  be  true,  then  there  is  no  tenable  reason 
why  this  circumstance  might  not  be  treated  by  the  legislature  as  evi- 
dence of  qualification  under  the  statute.  The  distinction  is  neither 
arbitrary  nor  unreasonable.  But  it  is  in  harmony  with  common  knowl- 
edge of  the  differences  which  ordinarily  exist  between  persons  fol- 
lowing the  medical  profession  who  have  a  permanent  locus  in  quo 
and  those  who  do  not.195 

15.  Penalties 

As  a  penalty  for  a  failure  on  the  part  of  a  physician  to  register 
in  pursuance  with  the  law  it  is  frequently  provided  therein  that  he 


194.  State  v.  Pennoyer,  65  N.  H.  113,  5  L.  R.  A.  709. 

195.  Art.  1,  Sec.  6,  Iowa  Constitution. 

State  v.  Bair,  112  Iowa  466,  84  N.  W.  532. 

Ch.  17,  Title  12,  Sec.  2579,  Iowa  Code,  Medical  Practice  Act. 

Art.  1,  Sec.  12,  Washington  Constitution. 

State  v.  Carey,  4  Wash.  424,  30  Pac.  729. 


56 

may  not  recover  for  services  rendered  his  patients.  That  is,  con- 
tracts for  compensation  for  such  services  are  void  ab  initio.  Nor 
will  a  subsequent  registration  allow  a  recovery  to  be  had  therefore. 
And  such  a  penalty  is  not  in  contravention  of  any  constitutional  pro- 
hibition against  the  vesting  of  exclusive  privileges  and  the  like.196 
For  such  constitutional  provisions  are  manifestly  pointed  to  the  pre- 
vention of  hereditary  rank  and  the  privileges  of  birth.  And  when  an 
act  confers  a  privilege  upon  a  class  or  group  of  men  incidentally  and 
indirectly  but  not  as  the  leading  purpose  thereof  the  statute  cannot 
be  said  to  contravene  such  a  constitutional  prohibition.  Moreover, 
the  motive  for  such  legislation  is  to  guard  the  public  against  ignor- 
ance, negligence,  and  carelessness, "in  the  members  of  a  most  useful 
profession.  And  the  means  selected  in  one  of  these  laws  are  intended 
to  be  adapted  to  that  object.  The  courts  all  seem  of  the  opinion  that 
the  law  in  question  is  not  repugnant  to  a  Bill  of  Rights  and  the  like. 
Nor  may  the  validity  of  such  a  measure  be  impeached  on  the  ground 
that  it  is  violative  of  any  principle  of  the  constitution.197 

The  mere  repeal  of  a  statute  containing  such  a  penalty  ("ut 
supra")  cannot  give  a  right  of  action  for  past  services.  It  needs 
something  more  than  to  remove  an  impediment.  There  must  be  life 
infused  and  a  course  of  action  created  which  before  did  not  exist. 
This  is  not  done  by  the  repeal  of  a  statute  and  cannot  legally  and 
constitutionally  be  done  by  a  positive  enactment  even.  It  is  not  com- 
petent for  the  legislature  even  to  create  an  obligation  out  of  a 
by-gone  transaction  which  at  the  time  of  its  concurrence  all  parties 
understood  to  be  and  was  strictly  gratuitous.198 

16.  Licensing  Itinerant  Physicians 
(a)  By  a  State. — A  statute  which  in  addition  to  the  ordinary 
physician's  license  required  itinerant  physicians  to  procure  an  itiner- 
ant license  also,  for  which  they  were  required  to  pay  $500  a  year, 
was  said  to  be  laying  an  occupation  tax.  This  was  on  the  ground 
that  the  law  did  not  involve  an  exercise  of  the  police  power.  It  did 
not  contain  anything  in  regard  to  special  fitness  or  qualifications  for 
practicing  medicine  as  an  itinerant  physician.  Nor  did  it  pretend  to 
be  regulatory  of  such  practice.  It  was  therefore  plainly  an  occupation 
tax  involving  only  the  taxing  power  of  a  state  and  as  such  would 
be  subject  to  such  provisions  of  a  state  constitution  as  that  "all  taxa- 


196.  6  Art.,  Bill  of  Rights,  Massachusetts  Constitution. 

197.  Hewitt  v.  Charier  (Mass.),  16  Pick.  350. 

198.  Warren  v.  Saxby,  12  Vt.  146. 


57 

tion  shall  be  equal  and  uniform."  The  court  in  passing  on  this  case 
admitted  that  an  occupation  tax  could  be  laid  on  itinerant  physicians. 
It  was  not  asserted  that  there  was  anything  unreasonable  in  taxing 
itinerants  per  se  as  a  class.  Such  a  division  of  practitioners  would 
be  entirely  reasonable.  But  the  section  was  unconstitutional,  inas- 
much as  it  did  not  apply  to  all  itinerants.  Only  those  from  without 
the  state  were  to  be  taxed.  And  since  an  occupation  tax  must  be 
uniform,  that  is,  apply  equally  to  all  those  in  the  same  class,  the 
law  was  to  this  extent  obviously  invalid.190 

It  would  seem  that  the  learned  court  fell  in  error  in  holding  this 
to  be  an  occupation  tax.190 

For  it  is  submitted  that  it  is  quite  patent  that  the  law  was  nothing 
but  an  exercise  of  the  police  power.109  The  fee  of  $500  was  a  pro- 
hibitory one.  It  was  applied  to  those  from  a  foreign  state  only,  just 
as  a  state  may  refuse  to  permit  any  non-resident  physician  to  prac- 
tice within  its  jurisdiction  if  it  so  desire.  It  was  simply  by  way  of 
forbidding  non-resident  itinerants  to  enter  the  confines  of  the  state. 
A  direct  prohibition  may  just  as  well  have  been  used.  Clearly  a 
state  can  distinguish  between  resident  and  non-resident  itinerants. 
For  all  itinerants  are  now  recognized  to  be  a  class  of  undesirables. 
The  legislature  would  seem  to  .have  been  taking  a  step  toward  abso- 
lute prohibition  of  the  occupation.  Such  laws  are  clearly  an  exercise 
of  the  police  power.  It  is  therefore  submitted  that  the  reasoning  of 
the  court  is  fallacious  and  that  the  law  is  constitutional.100 

In  Illinois  a  law  regulating  itinerants  was  declared  unconstitu- 
tional on  a  different  ground.  It  was  because  it  created  a  monopoly.200 
Here  too,  there  would  seem  to  be  error.  And  it  is  submitted  that 
the  court  did  not  discover  the  true  purport  of  the  law.  The  Illinois 
statute  required  itinerant  vendors  of  drugs  to  pay  a  fee  of  $100  a 
month.  This,  the  majority  held  to  be  objectionable  in  that  it  gave 
the  druggists  of  the  state  a  monopoly  in  the  business.  Very  true,  but 
the  object  of  the  law  was  to  prohibit  itinerants  from  carrying  on  their 
trade  and  in  some  measure  to  control  the  patent  medicine  business. 
It  would  seem  that  the  legislature  considered  pharmacists  more  fitting 
to  conduct  this  business  than  itinerants.  And  it  would  seem  that  a 
legislature  in  making  such  a  distinction  would  be  quite  within  its 
power.  Such  a  distinction  would  appear  to  be  entirely  reasonable. 
The  law  should  be  held  constitutional.201 


199.  State  v.  Doran  (S.  Dak.),  134  N.  W.  53. 
Freund,  Police  Power,  Para.  37,  288,  289,  732. 

200.  People  v.  Wilson,  249  111.  195. 

201.  Minority  opinion  People  v.  Wilson,  249  111.  195. 
Sec.  8,  Illinois  Medical  Practice  Act  of  1899. 
Freund,  Police  Power,  Para.  37  and  note,  39,  133. 


58 

(b)  By  a  Municipality. — A  state  may  confer  upon  a  city  or  town 
the  power  to  ordain  its  local  police  regulations.202  For  clearly  what 
the  state  may  do  in  its  sovereign  capacity  it  may  authorize  its  creatures 
to  do.  And  a  state  is  not  prohibited  therefrom  by  the  fact  that  its 
power  is  granted  to  it  from  the  people  who  have  not  also  granted  a 
power  to  delegate  such  authority.  This  right  would  seem  inherent  in 
a  state.  Thus  there  can  be  no  doubt  of  a  state's  power  to  delegate 
to  a  municipal  corporation  the  authority  to  regulate  such  matters  as 
shall  be  deemed  reasonably  necessary  for  the  protection  of  the  pub- 
lic in  the  particular  locality.  And  hence  since  a  state  may  regulate 
the  practice  of  medicine  it  may  delegate  the  same  power  to  munici- 
palities to  be  exercised  within  their  boundaries.  Nor  would  a  city 
ordinance  necessarily  conflict  with  a  state  law.  There  need  be  no 
inconsistency  and  both  could  be  enforced  at  the  same  time.  There- 
fore a  city  ordinance  requiring  traveling  physicians  to  pay  a  license 
fee  in  addition  to  that  required  by  the  state  would  be  valid  and  con- 
stitutional.203 

17.  Public  Profession  to  Cure  Evidence  of  a  Statutory 

Violation 

In  defining  the  practice  of  medicine  as  the  public  profession  of  the 
ability  to  cure  or  heal,  a  statute  is  simply  shifting  the  burden  of  proof. 
That  is,  the  public  profession  is  taken  as  sufficient  evidence  of  the 
violation  of  the  statute,  thereby  waiving  the  necessity  of  charging 
and  proving  an  overt  act.  And  such  a  change  is  valid  and  within  the 
legislative  power.204 

18.  Proof  as  to  the  Existence  of  a  Physician's  License 
The  contention  that  the  taking  of  a  record  in  a  county  clerk's 
office  and  making  it  "prima  facie"  evidence  as  to  the  existence  of  a 
physician's  license  is  illogical  and  arbitrary  would  seem  to  be  without 
foundation.  For  the  difficulty  of  proving  or  disproving  the  exist- 
ence of  a  license  is  frequently  so  great  that  an  arbitrary  rule  of  this 
nature  is  oftentimes  of  the  greatest  benefit.  A  state  may  under  its 
police  power  declare  the  character  of  proof  necessary  to  constitute 
"prima  facie"  evidence.  This  simply  shifts  the  burden  of  proof  and 
is  subject  to  rebuttal.205 


202.  Sec.  700,  2581,  Iowa  Code. 

203.  City  of  Fairfield  v.  Shallenberger.  135  Iowa  615,  113  N.  W.  459. 

But  see,  Noel  y.  State,  187  111.  587,  and  People  v.  Wilson,  249  111.  195,  as 
to  the  creation  of  monopolies. 

204.  State  v.  Heath,  125  Iowa  585,  101  N.  W.  429. 
State  v.  Wilhite,  132  Iowa  226,  109  N.  W.  730. 

205.  State  v.  Lawson,  40  Wash.  455,  82  Pac.  750. 


59 

19.  Enforcing  a  Penalty  in  an  Action  for  Debt 

To  have  a  civil  action  eventuate  in  a  judgment  in  a  criminal  case  is 
no  objection.  That  is,  a  statutory  provision  requiring  the  recovery 
of  a  penalty  in  an  action  for  debt  which  is  converted  into  a  fine  in 
proceedings  to  enforce  its  collection  would  not  render  the  law  invalid. 
These  laws  fall  within  the  police  power  of  a  state  and  its  discretion 
in  such  matters  is  extremely  broad.200 

20.  Medical  Practice  Act  of  a  Territory  on  Its  Admission  Into 

the  Union 
Territorial  laws  in  force  at  the  time  when  such  territory  is 
admitted  into  the  Union  as  a  state  are  not  necessarily  continued  in 
force.  It  would  seem  to  require  an  especial  provision  either  in  the 
organic  law  of  the  state  or  in  the  statutory  enactments  thereunder 
to  adopt  the  laws  of  the  defunct  territory  as  per  se  a  part  of  the 
municipal  laws  of  the  state.207 

I 
21.  Substituting  a  Bill  in  a  Legislature 

A  bill  introduced  as  a  substitute  for  a  medical  practice  act  in  a 
favorable  report  by  the  committee  to  whom  the  first  measure  had 
been  referred  need  not  be  considered  as  an  original  bill.  Consequently 
it  would  not  be  necessary  that  such  substitute  be  read  three  times  on 
different  days  and  once  in  full  as  is  required  for  an  original  bill.20S 

22.  Amending  a  Medical  Practice  Act 
In  amending  one  of  these  laws  it  is  frequently  essential  under  a 
constitution  to  do  so  by  either  setting  forth  the  entire  act  or  simply 
the  amended  section.     In  such  cases  it  would  be  clearly  improper  to 
refer  to  the  amended  act  by  the  title  of  the  act  only.209 

23.  When  to  Plead  the  Constitutionality  of  a  Medical 
Practice  Act 

In  contesting  the  constitutional  validity  of  one  of  these  laws  it  is 
essential  that  parties  concerned  therein  should  tender  that  issue  in 
the  trial  court.     For  such  a  point  cannot  be  raised  on  appeal  for  the 


206.  In  re  Roe  Chung   (N.  Mex.),  49  Pac.  952. 

207.  State  v.  Harmon  (Okla.),  104  Pac.  370. 
Art.  5,  Sec.  39,  Oklahoma  Constitution. 

Ch.  70a,  Art.  1,  Okla.  Sess.  L.  1909,  p.  701a. 

208.  Allopathic  Board  v.  Fowler,  50  La.  Ann.  1358. 

209.  Washington  Medical  Practice  Act,  1890  and  the  amendatory  Act  of  1901. 
State  v.  Lawson,  40  Wash.  455,  82  Pac.  750. 


60 

first  time  as  a  matter  of  right.  When  properly  raised  below  new 
special  grounds  cannot  be  urged  for  the  first  time  on  appeal,  par- 
ticularly when  an  examination  of  evidence  would  be  needed  in  the 
decision  thereof.210 

24.  When  One  Medical  Practice  Act  Repeals  Another 
A  statute  passed  subsequently  to  a  prior  one  and  either  apparently 
in  conflict  therewith  or  by  its  express  language  a  revision  thereof, 
will  be  taken  to  repeal  the  earlier  law  and  be  held  as  evidentiary  of 
the  legislative  intent  therein.  Such  a  law  will  not  under  such  cir- 
cumstances be  held  unconstitutional.211 

25.  Construing  a  Statute  to  Include  Midwives  Not 
Unconstitutional 
The  use  of  instruments  for  delivery  and  various  prescriptions  as 
"for  vaginal  douche,  post-partum  hemorrhage,"  and  the  like,  by  a  mid- 
wife has  been  held  to  fall  within  the  meaning  of  a  statutory  defini- 
tion of  the  practice  of  medicine.  But  such  a  construction  would  not 
render  the  act  invalid.  The  position  is  to  be  supported  on  the  ground 
that  the  maintenance  of  a  high  standard  of  professional  qualifica- 
tions for  physicians  is  of  vital  concern  to  the  public  health.  And 
reasonable  regulations  to  this  end  cannot  contravene  any  provision 
of  a  state  constitution.  And  thus  holding  a  midwife  to  be  practicing 
medicine  is  but  a  step  in  this  same  general  direction  and  would  clearly 
not  invalidate  a  medical  practice  act.212 

§  21. — Statutory  Constructions  as  to  the  Several  So-Called 
Schools  and  the  Validity  Thereof 
1.  Osteopathy. — The  positions  taken  by  the  courts  of  Ohio  and 
Texas  in  construing  their  laws :  In  State  v.  Liff ring213  and  State 
v.  Gravett214  is  to  be  found  the  position  of  the  Supreme  Court  of 
Ohio  on  osteopathy.  In  the  first  case  osteopathy  was  held  not  to  be 
the  practice  of  medicine.  But  the  statute  in  question  was  considered 
objectionable  because  of  its  phraseology.  It  seemed  that  the  legis- 
lature was  attempting  to  determine  a  question  of  science  and  thereby 
to  control  the  personal  conduct  of  the  citizen  without  regard  to  his 


210.  Allopathic  Board  v.  Fowler,  50  La.  Ann.  1358. 

211.  Oregon  Medical  Practice  Act,  1895. 
In  re  Ferdon  (Ore.),  57  Pac.  376. 

212.  Ch.  76,  Mass.  Stat.,  Sec.  3. 

Comm.  v.  Porn,  196  Mass.  326,  8  N.  E.  31. 

213.  61  Ohio  St.  39,  55  N.  E.  168,  46  L.  R.  A.  344,  76  Am.  St.  Rep.  358. 

214.  65  Ohio  St.  289,  62  N.  E.  325,  55  L.  R.  A.  791. 


61 

opinions.  Such  legislation  was  thought  to  be  an  astonishing  denial 
of  the  commonly  accepted  views  touching  the  right  to  personal  opinion 
and  conduct  which  does  not  invade  the  rights  of  others.  The  second 
case  to  a  certain  extent  discredited  State  v.  Liffring.  It  would  seem 
at  least  to  show  an  attempt  on  the  part  of  the  court  to  get  away  from 
the  doctrine  of  the  earlier  decision.  For  it  was  held  not  to  apply  in 
the  second  case.  Nevertheless,  the  proviso  to  the  statute  in  question 
was  held  void  because  of  unjust  discrimination.215 

The  statute  required  an  osteopath  to  take  a  four  year  course  in 
a  medical  school  in  good  standing  before  he  would  be  permitted  to 
take  an  examination  in  anatomy,  physiology,  chemistry,  and  physical 
diagnosis.  And  he  was  to  be  given  but  a  limited  certificate,  while 
the  applicant  for  an  unlimited  certificate  was  admitted  to  a  much 
more  extensive  examination  without  being  required  to  prove  attend- 
ance at  a  regular  medical  school.  It  was  said  that  the  object  of 
this  proviso  was  not  any  consideration  for  the  public  health.  It  was 
nothing  but  an  unreasonable  distinction.  Hence  the  section  in  ques- 
tion was  invalid.  The  case  might  very  well  have  been  decided  to 
the  contrary.  It  would  seem  that  too  fine  a  distinction  was  drawn  in 
taking  the  view  the  court  did.  An  apparently  better  view  is  to  be 
found  in  the  opinion  of  the  Texas  court  in  a  somewhat  similar  case.216 
Here  a  statutory  definition  of  the  practice  of  medicine  was  held  not 
to  militate  against  any  "school"  and  that  therefore  no  constitutional 
prohibition  was  contravened  thereby.217 

2.  Chiropractors. — Section  2582  of  the  Iowa  Code  was  construed 
to  include  chiropractors  in  its  definition  of  the  practice  of  medicine. 
And  a  chiropractor  was  indicted  and  convicted  thereunder  of  prac- 
ticing without  a  license.  It  was  contended  that  such  a  construction 
forced  these  practitioners  to  comply  with  the  law  to  their  manifest 
disadvantage,  as  they  would  be  discriminated  against  by  the  medical 
board  created  under  the  law.  This  it  was  contended  would  render 
the  act  unconstitutional.  It  would  seem,  however,  that  such  a  law 
does  not  discriminate  against  any  class  of  citizens  simply  in  providing 
a  board  for  the  regulation  of  the  medical  profession  and  in  allowing 
a  fairly  wide  discretion  to  this  board.  Nor  would  such  powers  con- 
fer on  the  board  of  examiners  any  arbitrary  power  or  enable  it  to 
discriminate  in  favor  of  any  particular  school  of  medicine.  Such 
boards  are  usually  permitted  to  prescribe  reasonable  rules  and  regu- 

215.  State  v.  Gravett,  65  Ohio  St.  289,  62  N.  E.  325,  55  L.  R.  A.  791. 

216.  Ex  parte  Collins,  51  Tex.  Cr.  Rep.  2,  121  S.  W.  501. 

217.  Sec.  13,  Texas  Medical  Practice  Act,  1907. 


62 

lations  for  the  conduct  of  its  work.  But  a  statute  does  not  warrant 
an  unjust  discrimination  by  a  board  in  the  exercise  of  the  several 
powers  that  may  be  granted  to  it.  Nor  will  a  court  presume  that 
a  board  might  exceed  its  power  or  do  an  unlawful  act  simply  for  the 
purpose  of  holding  the  law  under  which  the  board  was  created 
unconstitutional.218 

3.  Suggestive  Therapeutics. — Construing  an  act  so  that  it  applies 
to  these  practitioners  does  not  contravene  any  constitutional  prohibi- 
tion against  depriving  a  person  of  the  legal  right  to  carry  on  a  proper 
business.  It  has  been  maintained  that  these  practitioners  can  do  no 
harm.  But  it  would  seem  that  any  person  who  holds  himself  out 
as  a  physician  capable  of  treating  patients  and  alleviating  their  suf- 
ferings, should  know  whether  anything  should  be  done  and  what 
to  do.  It  would  therefore  appear  that  a  legislature  may  enact  a  law 
for  the  purpose  of  regulating  or  even  prohibiting  this  method  of 
treatment  as  carried  on  by  certain  individuals.219 

4.  Christian  Science. —  (a)  A  statute  making  it  a  misdemeanor  to 
give  such  treatment  for  a  fee  does  not  interfere  with  any  rights  of 
conscience  and  of  worship  as  conserved  by  the  several  state  consti- 
tutions,220 and  would  not  therefore  on  that  ground  be  unconstitutional. 

It  would  seem  that  legislation  prohibiting  any  one  from  treating 
disease  for  a  fee  excepting  those  persons  who  have  duly  qualified 
under  such  law  is  a  valid  exercise  of  the  police  power  of  a  state  and 
hence  constitutional.  Medical  practice  acts  are  as  a  general  rule 
reasonable  in  the  qualifications  required  of  a  practitioner  and  exclude 
no  one  possessing  them.  A  condition  as  is  here  considered  would 
not  seem  void  as  discriminating  against  Christian  Science  or  any  other 
school.  Nor  would  the  fact  that  any  one  possessing  certain  qualifi- 
cations may  practice  osteopathy  under  such  an  act  discriminate 
against  that  sect  in  that  no  similar  special  provision  was  made  for 
them.  This  may  be  placed  on  the  grounds  that  the  practice  of  medi- 
cine would  seem  to  be  nothing  more  than  a  privilege  or  franchise. 
Under  such  a  view  no  one  has  an  absolute  right  to  practice  but  is  sub- 
ject more  or  less  to  the  legislative  discretion.  But  even  assuming 
the  practice  of  medicine  to  be  an  absolute  right  all  persons  engaged 
therein  are  subject  to  such  reasonable  regulations  or  conditions  as 
a  state  in  the  exercise  of  its  police  power  may  prescribe.     Now  it 


218.  State  v.  Miller  (Iowa),  124  N.  W.  167. 
Green  v.  Hodges   (Kan.),  138  Pac.  605. 

219.  People  v.  Mulford,  125  N.  Y.  Supp.  680. 
Smith  v.  State  (Ala.),  63  So.  28. 

220.  Sec.  7,  Bill  of  Rights,  Ohio  Constitution. 


63 

would  seem  that  the  word  "treatment"  does  not  mean  only  the 
application  of  remedies  to  the  curing  of  disease.  But  it  might  very 
well  be  taken  to  include  prayer  for  the  recovery  of  the  sick.  For 
physicians  frequently  cure  imaginary  diseases  by  means  that  would 
as  easily  as  Christian  Science  escape  the  above  interpretation  of 
"treatment."  And  again  the  followers  of  Christian  Science  call  their 
method  of  healing  "treatment."  It  would  seem  therefore  that  these 
people  should  not  be  heard  to  the  contrary. 

As  has  been  said,  such  language  does  not  interfere  with  any  one's 
right  to  worship  God  according  to  the  dictates  of  his  conscience.  For 
the  language  usually  found  in  such  laws  does  not  prohibit  prescrib- 
ing, etc.,  excepting  for  a  fee,  or  some  similar  restraint.  Now  it  may 
be  said  that  exacting  a  fee  as  well  as  praying  can  hardly  be  taken 
as  a  part  of  a  religious  rite.  Laws  of  this  nature  are  clearly  in  the 
interest  of  public  welfare  and  so  long  as  they  are  not  obnoxious  on 
other  grounds,  may  be  taken  as  constitutional.  Nor  can  such  a  view 
be  taken  as  interfering  in  any  way  with  man's  natural  and  inde- 
feasible right  to  worship  Almighty  God  according  to  the  dictates  of 
his  own  conscience.221 

(b)  Christian  Science  the  Practice  of  Medicine  Although  Excepted 
in  a  Statute. — A  statute  defining  the  practice  of  medicine  appended 
the  clause  that  the  article  was  not  to  be  construed  to  affect  the  reli- 
gious tenets  of  any  church.  But  notwithstanding  this,  Christian 
Science  was  held  to  be  practicing  medicine  under  the  act.  This  was 
because  of  a  constitutional  provision  which  decreed  that  liberty  of 
conscience  was  not  to  be  construed  so  as  to  excuse  acts  of  licentious- 
ness or  justify  practices  inconsistent  with  the  peace  or  safety  of  the 
state.222  The  position  taken  was  also  based  in  no  little  degree  on 
the  fact  that  the  practice  of  Christian  Science  was  dangerous  to  the 
community  when  carried  to  an  extreme.  This  neither  the  statute  or 
the  constitution  permitted.  Hence  a  reader  of  the  church  could  be 
indicted  thereunder  for  practicing  medicine  contrary  to  the  law  and 
without  violating  any  constitutional  provision.223 

(c)  Saving  Clause  in  Statute  Not  a  Necessity. — Usually  it  will 
be  found  unnecessary  to  insert  a  saving  clause  in  a  medical  practice 
act  for  the  purpose  of  excepting  a  bona  fide  religious  sect  from  the 


221.  State  v.  Marble,  72  Ohio  St.  21,  73  N.  E.  1063. 

222.  Sec.  160  Public  Health  Law,  New  York. 
Sec.  173  Public  Health  Law,  New  York. 

Art.  L,  Sec.  3,  New  York  Constitution. 

223.  People  v.  Cole,  City  Magistrate's  Court,  City  of  New  York.  First  Division, 

Second  District,  Feb.  11,  1910;  aff'd  People  v.  Cole  (N.  Y.),  148  N.  Y. 
Supp.  708. 


64 

application  of  the  statute.  For  the  guarantee  of  religious  freedom  is 
a  basic  principle  in  all  our  governments  and  may  therefore  be  implied 
without  mention  in  the  law.  A  given  system  of  treatment  should  not 
be  excepted  either  under  a  statutory  provision  nor  under  this  guar- 
antee simply  because  there  is  an  apparent  association  with  a  form  of 
worship.  Religion  may  not  be  used  as  a  cloak  to  cover  infringement 
of  the  law.224 

(d)  Excepting  Treatment  by  Prayer  Not  Unconstitutional. — The 
fact  that  there  is  a  proviso  in  any  certain  statute  excepting  treatment 
by  prayer  therefrom  cannot  be  taken  as  rendering  the  statute  uncon- 
stitutional because  of  an  unjust  discrimination.  For  such  a  pro- 
vision is  not  to  be  taken  as  applying  to  a  certain  sect  only,  but  as  an 
immunity  allowed  to  all  who  may  desire  such  treatment.225 

It  may  be  argued  however,  that  this  contention  as  to  the  uncon- 
stitutionality of  such  a  provision  is  not  entirely  without  foundation. 
For  there  is  created  thereby  two  classes  who  may  minister  to  those 
suffering  from  either  physical  or  mental  ills.  The  one  class  is  com- 
pelled to  undergo  a  rigorous  and  thorough  scientific  training  prior  to 
being  permitted  to  "treat  disease"  for  a  compensation.  While  the 
other  must  simply  subscribe  to  the  tenets  of  a  so-called  religious 
faith  in  order  to  act  as  "healers."  Now  if  it  be  essential  that  a 
physician  who  uses  drugs  and  the  like  to  cure  his  patients  must 
submit  to  a  careful  preparation  therefore  in  order  to  protect  the 
health  of  the  public,  why  is  it  any  less  desirable  that  these  "healers" 
should  have  a  similar  knowledge?  If  ill  may  be  worked  through 
a  physician  having  an  improper  amount  of  knowledge  it  would  seem 
that  the  "healers"  of  these  alleged  religious  sects  would  be  equally 
dangerous.  It  is  therefore  submitted  that  it  is  manifestly  unjust  not 
only  to  the  physicians  who  comply  with  the  law,  but  to  the  public 
as  well,  to  make  such  exceptions  in  the  law.  A  law  so  drafted,  is,  it 
would  seem,  creating  a  monopoly  in  favor  of  a  class.  It  is  unreason- 
able in  such  a  discrimination  and  therefore  unconstitutional. 


224.  State  v.  Wilcox,  64  Kan.  789,  68  Pac.  634. 

225.  Ex  parte  Bohannon  (Cal.),  Ill  Pac.  1039. 


CHAPTER  II 
THE  PRACTICE  OF  MEDICINE  DEFINED 


22.  The  Construction  of  Medical  Practice  Acts. 

23.  Construing  Technical  Words. 

24.  "Medicine"  is  a  Technical  Word  and  must  be  so  Construed. 

25.  "Medicine"  Defined. 

26.  Medicine  as  Defined  by  the  Legislature  and  by  the  Courts. 

27.  A  Broad  Interpretation  of  the  Word  "Medicine"  does  not  give  it  a 

New  Meaning. 

28.  The   Language   must   be   Construed   Liberally   in   order   to   give   Full 

Effect  to  the  Enactment. 

29.  The  Phrase  "Practice  of  Medicine"  as  Judicially  Considered. 

50.  "Treat,"  "Operate  on." 

51.  Prescribing  Remedies. 

52.  The  Practice  of  Medicine  a  Business. 

33.  Advertising  as  Evidence  of  the  Practice  of  Medicine. 

3k.  Practicing  under  the  Direction  of  a  "Licensed  Physician." 

35.  Remedies  Sent  from  an  Adjoining  State. 

36.  Ophthalmology. 

37.  Dentistry. 

38.  "Material  Remedy." 

39.  "Mental  Treatment." 

40.  Treatment  in  an  Emergency. 

41.  Itinerant  Physicians. 

42.  Medical  Practice  Acts  as  Construed  by  "Minority." 

43.  Summary. 


§  22. — The  Construction  of  Medical  Practice  Acts 

All  laws  enacted  in  the  interest  of  the  public  welfare,  or  conveni- 
ence, for  the  protection  of  human  life,  or  in  regard  to  the  rights  of 
citizenship,  for  the  prevention  of  fraud,  or  providing  a  remedy  against 
either  public  or  private  wrongs  should  be  liberally  construed  with  a 
view  to  promote  the  object  in  the  mind  of  the  legislature.1 


1.  36  Cyc.  1172,  Construction  of  Statutes. 
1   Kent's   Commentaries,  461. 
Sutherland's  Statutes  and  Statutory  Construction  (1st  ed.),  Sees.  234,  237, 

238   239 
Bragg  'v.  State,  134  Ala.  165,  58  L.  R.  A.  925. 
Dent  v.  Virginia,  129  U.  S.  1.14,  32  L.  ed.  623,  9  Sup.  Ct.  Rep.  231. 


66 

Speaking  broadly,  medical  practice  acts  are  for  the  purpose  of 
protecting  the  sick  and  afflicted  from  the  pretentions  of  the  ignorant, 
the  unskilled  and  the  unscrupulous.  Such  legislation  is  an  endeavor  to 
prohibit  and  to  punish  fraud,  deception,  charlatanry  and  quackery  in 
the  practice  of  healing,  to  prevent  empiricism  and  to  bring  the  practice 
under  such  control  that  as  far  as  possible  the  ignorant,  the  unscientific, 
the  unskilled  and  the  unscrupulous  practitioner  may  be  excluded.  They 
are  designed  to  secure  the  public  in  whole  and  every  part  from  the 
charlatans  and  empiricists  who  masquerade  under  the  venerable  and 
honorable  titles  of  surgeons,  physicians  and  doctors.  And  to  protect 
the  public  in  a  just  reliance  upon  the  one  using  these  titles  as  a  man 
of  proper  education  and  sufficiently  trained  in  the  sciences  involved  to 
minister  properly  to  their  needs.2 

These  statutes  do  not  attempt  to  discriminate  between  the  different 
schools  of  medicine  or  systems  for  the  cure  of  disease.  No  method  of 
attempting  to  heal  the  sick,  however  occult,  is  prohibited.  All  that  the 
law  enacts  is  that  whatever  the  system,  the  practitioner  must  be 
possessed  of  a  valid  certificate  and  that  he  must  exercise  such  reason- 
able skill  and  care  as  are  usually  possessed  by  practitioners  in  good 
standing  of  that  system  in  the  vicinity  where  they  practice.  This 
excludes  no  one  from  the  profession,  but  requires  all  to  attain  reason- 
able proficiency  in  certain  subjects  essential  to  the  appreciation  of 
physical  conditions  to  be  affected  by  treatment.  The  object  is  not  to 
make  any  particular  mode  of  effecting  a  cure  unlawful,  but  simply  to 
protect  the  community  from  the  evils  of  empiricism.3 

Then  again,  the  public  interests  must  be  protected  against  fraud 
from  an  economical  standpoint.  For  a  just  enforcement  of  these  laws 
to  this  end  would  tend  to  prevent  the  most  deplorable  swindling  of 
the  ignorant  poor  who  can  least  afford  to  pay  for  the  luxury  of  decep- 
tion. And  it  is  in  this  class  that  the  readiest  dupes  are  found  by 
ostensible  practitioners  whose  competency  has  not  always  been  deter- 
mined by  law,  and  whose  moral  deficiencies  are  evidenced  by  their 


2.  Dent  v.  West  Virginia,  129  U.  S.  114. 
Hawker  v.  New  York,  170  U.  S.  189. 
Watson  v.  Maryland,  218  U.  S.  173. 
Bragg  v.  State,  134  Ala.  165. 
Collins  v.  Texas,  32  Sup.  Ct.  Rep.  286. 
Witty  v.  State,  173  Ind.  404. 

State  v.  Edmunds,  127  Iowa  333. 

People  v.  Phippin,  70  Mich.  6. 

State  v.  Oredson,  96  Minn.  509. 

State  v.  Buswell,  40  Neb.  158. 

People  v.  Allcutt,  102  N.  Y.  S.  678  (affirmed  189  N.  Y.  517). 

State  v.  Marble,  72  Ohio  St.  21. 

3.  State  v.  Heath,  125  Iowa  585. 


67 

false  pretenses.  But  small  wonder  it  is,  for  in  no  profession,  occupa- 
tion or  calling  is  it  possible  for  the  people  to  be  more  readily  imposed 
upon.4 

It  would  thus  seem  to  be  patent  that  the  care  of  the  public  welfare 
or  internal  public  policy  has  for  its  object  the  improvement  of  social 
and  economic  conditions.  And  that  medical  practice  acts  and  the  like 
are  intended  to  affect  the  community  at  large  and  collectively  with 
the  direct  view  of  bringing  about  "the  greatest  good  of  the  greatest 
number."  Any  legislation  of  this  nature  may  be  said  to  be  based  on 
the  primal  idea  that  the  collective  communal  action  of  the  state  more 
nearly  subserves  the  best  interest  of  the  state.  For  in  this  method, 
the  waste  and  sacrifice  entailed  by  individual  activity  is  curtailed  and 
the,  to  a  certain  extent,  "antisocial"  tendencies  of  private  effort  pre- 
vented. With  these  points  in  mind,  the  application  and  meaning  of 
the  maxim  "sic  utere  tuo  ut  alienum  non  laedas"  will  be  the  more 
readily  understood.5 

Medical  practice  acts,  therefore,  being  in  the  interests  of  the  general 
public  and  for  the  prevention  of  fraud  should  be  liberally  construed 
to  accomplish  the  object  of  their  enactment  and  to  prevent  the  mis- 
chief intended  to  be  guarded  against.6 

§  23. — Construing  Technical  Words 
Medical  practice  acts,  as  we  have  seen,  have  to  do  directly  with  the 
general  public  health.  And,  therefore,  such  laws  deal  very  nearly 
with  all  those  subtle  and  mysterious  influences  upon  which  health  and 
life  depend  and  which  require  not  only  a  knowledge  of  the  properties 
of  vegetable  and  mineral  substances,  but  of  the  human  body  in  all 
its  complicated  parts  and  their  relation  to  each  other  as  well  as  their 
influence  upon  the  mind.  The  physician  must  accordingly  be  able  not 
only  to  detect  readily  the  presence  of  disease,  but  to  prescribe  the 
appropriate  remedies  for  its  removal  as  well.7 

And  whether  the  physician  professes  to  attack  the  malady  or  the 
cause  is  immaterial.    They  are  all  treating  the  "ailment"  as  the  word 


4.  Freund,  Police  Power,  Para.  12. 
Bragg  v.  State,  134  Ala.  165. 
State  v.  Heath,  125  Iowa  585. 

5.  Freund,  Police  Power,  Para.  8,  et  sequi. 

6.  1  Kent's  Commentaries,  461. 

Sutherland,  Statutes  and  Statutory  Construction   (1st  ed.),   Sees.  234,  237, 

238,  239. 
Bragg  v.  State,  134  Ala.  165. 
Smith  v.  People  (Colo.),  117  Pac.  612. 
Harding  v.  People,  10  Colo.  387. 
Little  v.  State,  60  Neb.  749. 

7.  Dent  v.  West  Virginia,  129  U.  S.  114. 


.       68 

is  popularly  understood.  All  wish  to  restore  their  patients  to  sound 
bodily  and  mental  vigor.  And  that  is  the  essence  of  the  practice  of 
medicine.8 

It  is  this  term  "practice  of  medicine"  and  matters  of  a  like  nature 
which  have  given  rise  to  much  debate  and  which  have  developed  diverse 
opinions  in  the  several  jurisdictions  as  to  the  proper  construction  and 
interpretation  to  be  placed  upon  such  technical  words  which  are  to  be 
found  in  the  various  medical  practice  acts. 

In  the  construction  of  a  statute,  the  practical  inquiry  is  what  a 
particular  provision,  clause  or  word  means.  To  answer  it  one  must 
proceed  as  he  would  with  any  other  composition  —  construe  it  with 
reference  to  the  leading  idea  or  purpose  of  the  whole  instrument.  The 
whole  and  every  part  must  be  considered,  while  the  general  intent 
should  be  kept  in  view  in  determining  the  scope  and  meaning  of  any 
part.  In  this  way,  all  parts  of  an  act  are  to  be  brought  into  accord 
and  if  possible  given  a  sensible  and  intelligible  effect  in  furtherance 
of  the  general  design.  It  is  said  to  be  the  most  natural  exposition 
of  a  statute  to  construe  one  part  by  another,  for  that  expresses  the 
meaning  of  the  makers.    This  exposition  is  "ex  verceribus  actus."9 

When  a  word  having  a  technical  meaning,  as  well  as  a  popular  one, 
is  used  in  a  constitution  or  in  a  statute,  the  courts  will  accord  to  it  its 
popular  signification  unless  the  very  nature  of  the  subject  indicates, 
or  the  context  suggests  that  it  is  used  in  a  technical  sense.  The  court 
is  at  liberty  in  its  determination  of  the  nature  of  the  act  to  regard 
the  state  of  the  law  at  the  time  and  the  facts  which  the  preamble  or 
recitals  of  the  act  prove  to  have  been  the  existing  circumstances  at  the 
time  of  its  passage.  Such  words  will  be  used  in  a  technical  sense  when 
the  act  treats  of  the  subject  in  relation  to  which  such  words  are  tech- 
nically employed.  For  example,  in  the  case  .of  a  law  intended  for 
practical  application  to  men  engaged  in  avocations  in  which  the  words 
have  acquired  a  special  meaning  by  usage,  as  "practice  of  medicine."10 

The  words  of  a  statute  are  to  be  understood  in  the  sense  in  which 
they  best  harmonize  with  the  subject  of  the  enactment,  and  the  object 
which  the  legislature  has  in  view.  Their  meaning  is  found  not  so 
much  in  a  strictly  grammatical  or  etymological  propriety  of  language, 
nor  even  in  their  popular  uses,  as  in  the  subject,  or  in  the  occasion, 
on  which  they  are  used,  and  the  object  to  be  attained.  That  is,  in  the 
construction  of  a  statute,  as  in  that  of  other  instruments,  words  are 
to  be  understood,  not  according  to  their  mere  ordinary  general  mean- 

8.  Little  v.  State,  60  Neb.  749. 

9.  Sutherland,  Statutory  Construction  (1st  ed.),  Para.  245. 

10.  Sutherland,  Statutory  Construction  (1st  ed.),  Para.  247,  250,  254,  et  sequi. 


69 

ing,  but  in  their  ordinary  meaning  as  applied  to  the  subject  matter 
with  regard  to  which  they  are  used.  Unless,  indeed,  there  be  some- 
thing requiring  them  to  be  read  in  a  sense  which  is  not  their  ordinary 
sense  in  the  English  language  as  so  applied.  An  obvious  result  of  this 
rule  is  that  where  technical  words  are  used  in  reference  to  a  technical 
subject,  they  are  primarily  interpreted  in  the  sense  in  which  they  are 
understood  in  the  science,  art  or  business  in  which  they  have  acquired 
it.  But  the  rule,  giving  to  a  word  its  technical  meaning,  holds  equally 
good  in  the  construction  of  statutes  dealing  with  other  subjects,  in 
which  are  to  be  found  words  and  phrases  that  have  been  used  in  a 
prior  statute,  thereby  acquiring  a  technical  meaning,  whether  it  be  a 
legal  technical  meaning  or  not.  That  is,  whether  it  be  a  technical 
meaning  which  the  word  or  phrase  has  acquired  in  the  law,  or  a 
technical  meaning  which  it  has  acquired  in  any  other  science,  art  or 
business.  If  the  enactment  relates  to  any  of  these,  the  technical  mean- 
ing the  word  has  in  the  law  in  any  other  science,  in  any  art  or  in  any 
business  is  to  be  given  to  it  accordingly  as  the  one  or  the  other  is  the 
subject  of  the  enactment.11 

§  24. — "Medicine"  is  a  Technical  Word  and  Must  be  so 

Construed 
It  would  seem  that  the  term  "medicine"  especially  when  used  in 
the  phrase  "practicing  medicine"  or  the  like  could  hardly  have  reference 
to  any  other  subject  than  a  science  or  an  art.  When  so  used,  it  would 
seem  to  be  a  technical  word  denoting  the  science  or  art  of  curing 
diseases  —  and  one  who  engages  in  the  "practice  of  medicine"  is  a 
scientist  or  an  artist  professionally  known  by  the  name  "physician" 
or  "doctor."  It  may  be,  and  doubtless  is  true  that  it  is  not  and  has 
never  been  an  exact  science;  but  this  is  due  to  the  fact  that  it  has 
been,  and  is  a  progressive  science.  But  it  is,  nevertheless,  a  science 
or  an  art.  Nor  does  the  fact  that  those  who  practice  the  science  or 
art  differ  as  to  the  administration  of  specific  remedies  for  specific 
diseases  render  it  any  the  less  an  art  or  science.  These  differences 
have  always  existed  and  will  doubtless  always  continue  to  exist.  As 
a  science,  the  practitioners  of  medicine  are  not  simply  those  who  pre- 
scribe drugs  or  other  medicinal  substances  as  remedial  agents.  For 
the  term  "medicine"  is  broad  enough  to  include  and  does  include  all 
persons  who  diagnose  disease  and  prescribe  or  apply  any  therapeutic 
agent  for  its  cure.  Can  it  be  seriously  doubted  that  it  is  not  the  intent 
and  purpose  of  the  legislative  mind  in  these  laws  to  restrict  the  exam- 


11.  Endlich,  Interpretation  of  Statutes,  Pp.  94-96,  Para.  73-75. 
17  Am.  &  Eng.  Ency.  Law  (2d  ed.)   13. 


70 

ination  of  those  desiring  to  practice  medicine  to  that  class  of  the 
profession  who  may  prescribe  drugs  as  therapeutic  agents  in  the 
healing  of  diseases?    It  would  seem  not.12 

THE    NARROW    CONSTRUCTION   OF   THE   TERM    "MEDICINE"    IS   BASED 

ON  A  "FALLACY" 

In  the  construction  of  medical  practice  acts,  courts  have  frequently 
based  their  opinions  upon  a  fallacy  in  their  interpretation  of  the  words 
"medicine"  and  "medical."  This  has  doubtless  been  due  in  great  part 
to  the  double  entendre  in  the  word  "medicine."  It  may  mean,  and 
as  commonly  used  does  mean  either  of  two  things :  in  one  sense  it 
means  a  substance  or  thing  which  has,  or  is  believed  to  have,  certain 
curative  properties  which  are  exercised  upon  the  body  by  taking  the 
substance  into  the  system  in  some  way,  or  by  applying  it  to  the  body 
externally.  When  so  used,  it  is  frequently  synonymous  with  "drug." 
But  the  word  has  another  common  and  well-established  meaning  which 
is,  nevertheless,  frequently  overlooked  or  entirely  ignored  in  these  dis- 
cussions upon  the  construction  and  operation  of  statutes  regulating 
the  "practice  of  medicine."  That  meaning  is  the  science  or  system 
of  curing,  healing,  alleviating  or  preventing  disease,  physical  dis- 
orders and  injuries  without  reference  to  the  means  employed  to 
accomplish  that  end.  Similarly,  in  the  arguments  of  those  who  are 
attempting  to  prove  the  unconstitutionality  of  medical  practice  acts, 
the  word  "medical"  used  in  connection  with  school,  college,  practice, 
etc.,  is  usually  construed  as  having  to  do  only  with  medicinal  substances, 
drugs,  and  the  art  of  administering  them ;  whereas  the  word  has,  aside 
from  any  connotation  of  drugs  and  remedial  substances,  the  well- 
settled  meaning  of  "engaged  in,  or  connected  with  the  study  or  treat- 
ment of  disease."  "Medicine"  in  its  generic  sense  as  a  science  must 
not  be  confused  with  the  term  drug.  And  a  physician  is  not  neces- 
sarily one  who  treats  disease  through  the  instrumentality  of  drugs 
alone.  Thus  the  "practice  of  medicine"  is  not  a  branch  of  the  healing 
art  confined  to  the  use  of  drugs  alone.  Nor  is  a  "medical"  college  con- 
fined to  teaching  only  the  application  of  drugs  as  a  cure  for  disease.13 

§  25. — "Medicine"  Defined 
The  word  "medicine"  (latin,  medicina)  is  derived  from  mederi  — 
to  heal.    It  has  been  defined  in  various  medical  and  standard  dictionaries 


12.  Bragg  v.  State,  134  Ala.  165. 
Richardson  v.  State,  47  Ark.  562. 
State  v.  Schmidt,  138  Wis.  53. 

13.  Bragg  v.  State,  134  Ala.,  165. 

Collins  v.  Texas,  32  Sup.  Ct.  Rep.  286  (U.  S.). 


71 

as  well  as  by  statute  and  the  courts.  An  analysis  and  comparison  of 
these  several  definitions  evidenced  a  similarity  in  shades  of  meaning 
which  would  seem  to  admit  of  but  a  single  conclusion,  to-wit :  this 
term  is  used  only  in  its  broadest  sense  in  these  acts. 

Medicine  is  the  healing  art;  physic;  a  science  the  object  of  which  is 
the  cure  of  disease  and  the  preservation  of  health.11 

Medicine  is  the  science  and  art  of  preserving  health  and  of  pre- 
venting and  curing  disease;  the  healing  art  including  also  the  science 
of  obstetrics.  In  a  more  restricted  sense  of  the  word,  surgery  is 
excluded.  .  .  .  The  term  is  applied  also  to  a  particular  drug  or 
therapeutic  application.13 

Medicine  is  the  science  and  art  dealing  with  the  prevention,  cure 
or  alleviation  of  disease;  in  a  narrower  sense,  that  part  of  the  science 
and  art  of  restoring  and  preserving  health  which  is  the  province  of  the 
physician  as  distinguished  from  the  surgeon  and  obstetrician.  And 
again  as :  any  substance  or  preparation  used  in  treating  diseases ;  a 
medicament;  a  remedial  agent;  a  remedy;  a  physic.  And  the  etymology 
of  the  word  is  given  under  "medical"  as :  L.L.  "medicalis,"  L.  "medicus" 
belonging  to  healing,  from  "mederi,"  to  heal." 

Medicine  is  a  substance  used  as  a  remedy  for  disease ;  a  substance 
having  or  supposed  to  have  curative  properties ;  hence,  figuratively, 
anything  that  has  a  curative  or  remedial  effect.  The  art  of  preventing, 
curing  or  alleviating  disease  and  of  remedying  as  far  as  possible  the 
results  of  violence  and  accident." 

Medicine  is  a  substance  possessing  or  reputed  to  possess  curative 
or  remedial  properties;  as  a  fever  medicine;  a  medicine  for  a  cold.  The 
healing  art;  the  science  of  the  preservation  of  health  and  of  treating 
disease  for  the  purpose  of  cure.18 

Medicine,  a  subject  of  one  of  the  learned  professions,  includes  as 
it  now  stands  a  wide  range  of  scientific  knowledge  and  practical  skill. 
The  science  of  medicine  is  the  theory  of  disease  and  its  remedies.19 

Thus  it  would  seem  that  "medicine"  is  a  technical  word  denoting 
a  science  and  comprehending  not  only  therapeutics,  but  the  art  of 
understanding  the  nature  of  diseases,  the  causes  that  produce  them, 
as  well  as  the  art  of  knowing  how  to  prevent  them  —  hygiene,  sanita- 
tion and  the  like.  And  these  definitions  are  fully  supported  and  their 
correctness  is  thoroughly  established  by  the  history  of  medicine  and 
its  practice  as  a  science  or  art.  Thus  it  has  never  been  supposed  that 
the  disciples  of  any  particular  school  of  the  healing  art  were  physi- 
cians—  practitioners  of  medicine  —  and  that  those  of  a  different 
school  or  sect  were  not.  They  have  all  been  regarded  by  eminent 
scholars  as  engaged  in  the  "practice  of  medicine."  Again,  the  history 
of  medicine  shows  that  there  have  always  been  many  systems  of  healing 

14.  Dunglison,  Medical  Distionary. 

15.  Gould's    illustrated   Dictionary  of  Medicine,   Biology  and  Allied    Sciences 

(1904). 

16.  Webster's  New  International  Dictionary  (1910). 

17.  Century  Dictionary. 

18.  Standard  Dictionary  (1897). 

19.  Encyclopedia    Britannica,    title    "Medicine,"    subtitle    "Synoptical    View    of 

Medicine." 


72 

and  further  that  there  have  been  vital  differences  between  the  various 
schools.  Yet  all  these  systems  are  included  within  the  healing  art, 
or  the  practice  of  medicine.  Finally,  the  history  of  legislation  on  the 
subject  of  medicine  proves  that  it  was  always  dealt  with  in  its  broad 
and  comprehensive  sense  —  as  the  science  or  art  of  preventing  and 
healing  bodily  and  mental  infirmities.  This,  perhaps,  has  been  rather 
emphasized  than  otherwise  in  the  present  day  legislation  on  the 
subject.20 

This  broad  view  of  the  meaning  of  the  term  "medicine"  and  as  to 
the  legislative  intent  in  its  use  has  been  recognized  in  numerous  state 
courts  which  had  to  decide  whether  certain  drugless  systems  and 
methods  of  healing,  such  as  osteopathy,  mechano-neural  therapy,  mag- 
netic healing,  chiropractic,  etc.,  were  included  within  the  operation  of 
statutes  which  undertook  to  regulate  "the  practice  of  medicine  in  any 
of  its  branches  or  departments,"  "the  practice  of  medicine  and  sur- 
gery," "the  practice  of  medicine,"  etc.21 

§  26. — "Medicine"  as  Defined  by  the  Legislature  and 
by  the  Courts 

In  New  York,  the  practice  of  medicine  was  defined  as : 

"holding  one's  self  out  as  being  able  to  diagnose,  treat,  operate  or  pre- 
scribe for  any  human  disease,  pain,  injury,  deformity  or  physical  condi- 
tion, and  who  shall  either  offer  or  undertake  by  any  means  or  method 
to  diagnose,  treat,  operate  or  prescribe  for  any  human  disease,  pain, 
injury,  deformity  or  physical  condition." 

This  language  was  deemed  capable  of  a  very  broad  interpretation 
and  as  applying  to  the  several  methods  of  treatment.22 

Under  the  Iowa  code,  the  "practice  of  medicine"  is  defined  as 
follows : 

"Any  person  shall  be  held  as  practicing  medicine,  surgery  or  obstet- 
rics or  to  be  a  physician  within  the  meaning  of  the  chapter  who  shall 
publicly  profess  to  be  a  physician,  surgeon  or  obstetrician  and  assume 
the  duties,  or  who  shall  make  a  practice  of  prescribing  and  furnishing 
medicine  for  the  sick,  or  who  shall  publicly  profess  to  cure  or  heal." 


20.  Bragg  v.  State,  134  Ala.  165. 

Collins  v.  Texas,  32  Sup.  Ct.  Rep.  286. 

21.  Witty  v.  State,  173  Ind.  404. 

State  v.  Miller  (Iowa),  124  N.  W.  167. 

People  v.  Phippen,  70  Mich.  6. 

Little  v.  State,  60  Neb.  749. 

People  v.  Allcutt,  102  N.  Y.  Supp.  678. 

State  v.  Marble,  72  Ohio  St.  21. 

O'Neil  v.  State,  115  Tenn.  427. 

Ex  parte  Collins,  57  Tex.  Crim.  Rep.  2. 

27  Cyc.  466,  and  cases  cited. 

22.  People  v.  Mulford,  125  N.  Y.  680. 

Ch.  344,  New  York  Code,  Sec.  1,  Subd. 


73 

This  statute  was  also  construed  as  covering  ail  systems  of  healing." 
Judicially  "medicine"  has  been  held  to  mean  the  art  of  healing  by 
whatever  scientific,  or  supposedly  scientific,  method  there  may  be.  It 
means  the  art  of  preventing,  curing  or  alleviating  disease  and  remedy- 
ing as  far  as  possible  the  results  of  violence  and  accident.  It  further 
means  something  which  is  supposed  to  possess  or  some  method  which 
is  supposed  to  possess  curative  powers.24 

"Medicine"  in  its  ordinary  sense  as  applied  to  human  ailments 
means  something  which  is  administered  either  internally  or  externally 
in  the  treatment  of  disease  or  the  relief  of  sickness.  It  may  be  applied 
externally  and  it  need  not  be  a  substance  which  may  be  seen  or 
handled.  It  may  consist  of  electricity  conveyed  by  instruments  or  the 
human  hand.  And  he  whose  profession  it  is  to  prescribe  and  admin- 
ister this  after  diagnosing  the  complaint  is  a  physician  as  commonly 
and  ordinarily  understood.25 

§  27. — A  Broad  Interpretation  of  the  Word  "Medicine" 
Does  not  Give  It  a  New  Meaning 
It  has  been  argued  that  to  extend  the  meaning  of  this  word  "medi- 
cine" and  the  phrase  "practice  of  medicine"  as  well,  so  as  to  include 
all  systems  of  healing,  is  to  give  an  unusual  and  false  meaning  to  the 
word  "medicine."  And  further,  it  has  been  said  that  a  legislature 
cannot  extend  the  meaning  of  these  words  so  as  to  include  methods 
of  healing  diametrically  opposed  to  the  so-called  common  understand- 
ing of  the  term  "practice  of  medicine."  It  may  very  well  be  true  that 
a  better  phrase  than  "practice  of  medicine"  may  be  selected  under 
which  to  group  the  several  systems  of  healing.  Still  this  phrase  and 
the  meaning  given  it  in  the  various  acts  is  by  no  means  new.  Rather 
it  is  a  return  to  the  original  meaning  of  the  word  "medicine."  Nor 
can  it  be  said  that  this  is  an  unwarranted  use  of  the  term.  For  a 
legislature  clearly  can  define  terms  used  in  an  act  in  order  that  a  court 
may  more  readily  give  effect  to  the  enactment.26 

§  28. — The  Language  Must  Be  Construed  Liberally  in  Order  to 
Give  Full  Effect  to  the  Enactment 
It  would  be  too  narrow  a  view  of  the  "practice  of  medicine"  to 
say  that  it  could  not  be  engaged  in,  in  any  case  or  class  of  cases,  other- 


23.  Ch.  17,  Iowa  Code,  Sec.  2579. 
State  v.  Heath,  125  Iowa  585. 

24.  Ex  parte  Collins,  57  Tex.  Crim.  Rep.  2. 

Texas  Medical  Practice  Act,  1907,  Sees.  13  and  31. 

25.  Kansas  City  v.  Baird,  92  Mo.  App.  208. 

26.  Territory  v.  Newman  (N.  Mex.),  72  Pac.  706. 


74 

wise  than  by  prescribing  or  dealing  out  a  substance  to  be  used  as  a 
remedy.  The  science  of  medicine,  that  is  the  science  which  relates 
to  the  prevention,  cure  or  alleviation  of  disease  covers  a  broad  field 
and  is  not  limited  to  that  department  of  knowledge  which  relates  to 
the  administration  of  medicinal  substances.  It  includes  a  knowledge 
not  only  of  the  functions  of  the  organs  of  the  human  body,  but  also 
of  the  diseases  to  which  these  organs  are  subject  and  of  the  laws  of 
health  and  the  modes  of  living  which  tend  to  avert  or  overcome  dis- 
ease as  well  as  the  specific  methods  of  treatment  that  are  most  effective 
in  promoting  cures.  It  is  conceivable  that  one  may  practice  medicine 
to  some  extent  in  certain  classes  of  cases  without  dealing  out  or  pre- 
scribing drugs  or  other  substances  to  be  used  as  medicine.  Clearly, 
any  practice  act  to  be  effective  must  be  construed  to  include  all  such 
practitioners.27 

And  such  a  law  must  be  the  more  liberally  construed  to  be  made 
effective  when  the  act  exempts  numerous  classes  from  its  application 
such  as  osteopaths,  Christian  Scientists  and  the  like.  For,  even  with 
such  exceptions,  by  taking  a  broad  view  of  any  act  of  this  nature,  it 
may  very  well  be  that  the  "practice  of  medicine"  is  possible  under  its 
language  without  prescribing  drugs  to  be  used  as  medicine. 

Moreover,  to  confine  the  definition  of  the  words  "practice  of  medi- 
cine" to  the  mere  administration  of  drugs  or  the  use  of  surgical 
instruments  would  be  to  eliminate  the  very  cornerstone  of  successful 
medical  practice.  And  that  is  the  diagnosis.  This  is  quite  clearly  an 
integral  part  of  both  the  study  and  the  practice  of  medicine  and  it 
is  so  recognized  by  law  as  by  common  sense.  The  correct  determination 
of  what  the  trouble  is  must  be  the  first  step  for  the  cure  thereof.28 

Again,  would  it  seem  a  proper  construction  to  give  to  the  words : 

"medicine,  appliance,  or  other  method" 
to  say  that  they  import  simply 

"a  medicine  or  drug,  or  something  to  be  administered  as  a  medicine 
or  drug  would  be"? 

Indeed  this  would  seem  much  too  narrow.  For  an  appliance  can 
hardly  be  said  to  be  a  medicine  or  drug  and  a  method  may  or  may 
not  involve  the  administration  of  any  substance  either  internally  or 
externally.  True,  when  general  terms  follow  specific  words  of  a  like 
nature,  the  general  terms  are  presumed  to  embrace  things  and  methods 

27.  Commonwealth  v.  Jewelle,  199  Mass.  558. 

28.  People  v.  Allcutt,  102  N.  Y.  Supp.  678. 
Collins  v.  Texas,  32  Sup.  Ct.  Rep.  286. 


75 

of  the  kind  designated  by  the  specific  words.  But  for  the  rule  "noscitur 
a  sociis"  to  apply,  it  must  first  appear  that  the  general  words  are  of 
a  like  nature.  This  is  not  true  here.  Such  language  evidently  intends 
to  prohibit  the  practice  of  the  healing  art  by  the  use  of  medicine  or 
any  kind  of  appliances  or  methods  except  on  certain  named  condi- 
tions. This  is  very  broad  and  comprehensive  language  and  would 
seem  to  cover  any  and  every  kind  of  public  profession  to  cure  and 
heal  by  the  use  of  any  method  or  device.  When  a  legislature  has 
defined  the  terms  of  a  statute,  the  courts  should  accept  such  defini- 
tion and  not  be  too  subtle  in  the  use  of  refined  distinctions.29 

After  the  decision  in  State  v.  Liffring30  was  handed  down,  the 
Ohio  practice  act31  was  amended  to  read:  "who  shall  prescribe  or 
who  shall  recommend  for  a  fee  for  like  use  any  drug  or  medicine, 
application,  operation  or  treatment  of  whatever  nature  for  the  cure 
or  relief  of  any  wound,  fracture,  bodily  injury,  infirmity  or  disease." 
This  was  to  obviate  the  effect  of  the  Liffring  case  as  it  had  applied 
the  doctrine  of  "noscitur  a  sociis"  to  the  language  "medicine,  drug  or 
other  remedy."  The  two  laws  were  distinguished  on  the  ground  that 
in  the  earlier  statute  the  legislature  had  intended  to  prohibit  the  admin- 
istration of  drugs  only  by  persons  not  informed  as  to  their  effect  or 
potency.  In  the  amended  law,  however,  it  was  patent  that  a  com- 
prehensive regulation  of  the  healing  art  was  intended.  Thus  the 
Liffring  case  was  in  effect  overruled  and  the  broader  interpretation 
was  given  to  the  new  law.32 

It  was  contended  that  the  word  "treatment"  as  used  in  this  same 
Ohio  statute  was  to  be  given  the  same  meaning  as  when  it  was  used 
in  the  phrase  "practice  of  medicine"  and,  that  so  read,  it  means  the 
application  of  remedies  to  the  curing  of  disease;  that  a  remedy  is  a 
medicine  or  application  or  process ;  that  a  process  is  an  action  or 
operation,  and  that  prayer  for  the  recovery  of  the  sick  is  neither.  But 
it  would  seem  that  the  words  "of  whatever  nature"  following  the 
word  "treatment"  are  pregnant  with  meaning  and  that  therein  is  evi- 
denced the  legislative  intent  to  bring  within  the  definition  every  person 
who  for  a  fee  prescribes  or  recommends  a  cure  for  disease.  And 
further,  this  would  seem  but  a  recognition  of  the  fact  that  the  healing 
and  curing  of  disease  may  be  attempted  by  an  invisible  agency  and 
by  aid  other  than  the  art  and  science  of  man.     For  to  assume  that 


29.  State  v.  Edmunds,  127  Iowa  333. 
Ch.  17  Iowa  Code,  sec.  2579-81. 

30.  61   Ohio  St.  39. 

31.  Medical  Practice  Act,  1900. 

32.  State  v.  Gravett,  65  Ohio  St.  289. 


76 

legislation  may  be  directed  only  against  the  administration  of  drugs 
or  the  use  of  the  knife  is  to  take  too  narrow  a  view  of  the  laws 
regulating  the  practice  of  medicine.  The  subject  of  such  enactments 
of  the  legislature  is  not  medicine,  i.  e.,  drugs  and  surgery.  It  is  the 
public  health  or  the  general  welfare  of  the  state.  It  is  disease  and  not 
the  treatment  thereof  with  which  the  legislature  deals.33 

§  29. — The  Phrase  "Practice  of  Medicine"  as  Judicially 

Considered 

The  "practice  of  medicine"  may  be  said  to  consist  of  three  things: 
first,  in  judging  the  nature,  character  and  symptoms  of  disease ;  second, 
in  determining  the  proper  remedy  for  disease ;  and  third,  in  giving  or 
prescribing  the  application  of  the  remedy  to  disease.  Thus,  in  making 
a  diagnosis  of  a  case  and  in  giving  medicine  to  the  patient  a  person 
is  clearly  practicing  medicine  within  the  broadest  meaning  of  the 
language.  "The  'practice  of  medicine'  as  that  term  is  more  generally 
understood  means  the  exercise  or  performance  of  any  act  by  or  through 
the  use  of  anything  or  matter,  or  by  things  given  or  applied  whether 
with  or  without  the  use  of  drugs  or  medicines  by  a  person  holding  him- 
self or  herself  .out  as  able  to  cure  diseases  or  the  causes  of  diseases 
with  a  view  to  relieve,  heal,  cure,  or  having  for  its  object  the'  prevention, 
healing,  curing  or  alleviation  of  disease."34 

The  term  "practice  of  medicine"  may  be  taken  as  embracing  the 
art  of  preventing,  curing  and  alleviating  disease  and  of  remedying  as 
far  as  possible  the  results  of  violence  and  accident.  Therapy  is  the 
treatment  of  disease  and  surgery  is  operative  therapy.  Thus,  the 
practice  of  medicine  necessarily  includes  surgery  and  any  method  of 
treatment.35 

Holding  one's  self  out  as  a  physician  together  with  diagnosing, 
prescribing  and  charging  therefor  constitute  the  "practice  of 
medicine."36 

Diagnosing  disease,  writing  prescriptions  or  prescribing  remedies 
are  all  embraced  in  the  "practice  of  medicine"  and  cannot  be  limited 
to  the  term  "optician"  alone.  Holding  one's  self  out  to  the  world  as 
a  practitioner  of  the  healing  arts  and  soliciting  patients  afflicted  with 
disease  for  treatment  are  determinative  factors  as  to  whether  or  no 
a  person  is  practicing  medicine  within  the  meaning  of  any  given  law.37 


33.  State  v.  Marble,  72  Ohio  St.  21. 

34.  Underwood  v.  Scott,  43  Kan.  714. 
Green  v.  Hodges   (Kan.),  138  Pac.  605. 

35.  Stewart  v.  Raab,  55  Minn.  20. 

36.  State  v.  Van  Doran,  109  N.  C.  864. 

37.  O'Neil  v.  State,  115  Tenn.  427. 


77 

It  may  be  true  that  a  person  does  not  administer  drugs,  but  in 
practicing  what  purports  to  be  the  healing  art,  that  person  practices 
medicine.  The  attempt  to  help  certain  ailments  by  a  scientific  manipu- 
lation affecting  the  nerve-centers  or  the  like  must  be  preceded  by  a 
diagnosis.  And  all  this  requires  a  scientific  training.  In  undertaking 
to  be  something  more  than  a  nurse  or  a  mere  masseur  and  in  making 
a  claim  to  greater  science,  the  state  may  require  proof  thereof,  and 
may  forbid  the  general  practice  of  any  system  for  money  except  on 
certain  conditions  in  the  law.38 

Under  the  Iowa  medical  practice  act,  it  was  deemed  the  manifest 
intention  of  the  legislature  to  divide  those  who  were  to  be  considered 
as  practicing  medicine  into  three  classes :  first,  all  those  who  profess 
to  be  a  physician,  surgeon  or  obstetrician,  and  assume  the  duties 
thereof ;  second,  those  who  make  a  practice  of  prescribing  and  fur- 
nishing medicine  for  the  sick,  and  third,  those  who  shall  publicly  profess 
to  cure  or  heal.  It  is  doubtless  true  that  a  mere  public  profession  would 
not  subject  anyone  to  the  penalties  of  this  law.  But  to  fall  within  the 
purport  of  the  statute,  a  profession  would  have  to  be  made  under  such 
circumstances  as  to  indicate  that  it  is  made  with  a  view  to  curing  the 
afflicted.  And  one  publicly  professes  to  heal  in  the  meaning  of  this 
act  in  announcing  to  the  public  generally  his  claim  of  skill  in  the 
art  of  healing  with  the  purpose  of  treating  the  maladies  of  patients 
who  may  engage  his  attentions.39 

A  number  of  acts  regulating  the  practice  of  medicine  place  con- 
siderable emphasis  on  three  points  which  taken  either  separately  or  in 
conjunction  evidence  very  strongly  whether  a  given  act  is  violative  of 
the  law.  These  criteria  are :  first,  opening  an  office  in  which  to  practice 
medicine;  second,  announcing  publicly  that  one  is  able  or  willing  to 
practice  medicine ;  third,  prescribing  a  remedy  for  any  bodily  or  mental 
ailment  for  a  compensation.  Under  the  first  two  points  the  essence 
of  the  act  is  the  public  announcement  of  a  general  readiness  and  will- 
ingness to  treat  the  sick.  This  may  be  done  in  either  of  the  two  ways ; 
either  by  the  act  of  opening  an  office,  or  by  an  advertisement  or  other 
public  statement.  Under  neither  of  these  is  any  actual  treatment  of 
a  patient  necessary  and,  therefore,  the  question  of  compensation  is 
immaterial  to  a  prosecution  thereunder.  The  third  point,  however, 
deals  with  the  actual  treatment  of  disease  and  prescribing  for  the  sick 
or  injured.  It  is,  therefore,  provided  that  such  attention,  if  it  be  to 
one  person  only,  and  even  without  a  previous  opening  of  an  office 


38.  Collins  v.  Texas,  32  Sup.  Ct.  Rep.  (U.  S.)  286. 

39.  Ch.  17,  Iowa  Code,  Sec.  2579. 
State  v.  Heath,  125  Iowa  585. 


78 

or  any  previous  advertising,  is  to  constitute  the  "practice  of  medicine." 
But  such  treatment  must  be  furnished  for  pay  either  present  or  pros- 
pective. And  further,  it  would  seem  quite  immaterial  from  whom 
compensation  was  received  or  from  whom  it  was  intended  it  should 
be  received.  Laws  embodying  these  features  would  seem  to  imply  that 
a  violation  of  any  one  or  all  of  these  would  be  practicing  medicine 
contrary  to  law. 

In  a  law  of  this  nature,  it  would  seem  that  any  system  or  method 
of  healing  might  very  well  be  included  and  that  therein  would  be 
obviated  many  of  the  difficulties  in  attempting  such  an  inclusion  in  that 
an  overt  act  is  specified  as  designating  a  violation  of  the  law.40 

In  the  consideration  of  any  act  regulating  the  "practice  of  medi- 
cine," the  essential  point  to  be  remembered  is  that  the  term  "medicine" 
is  not  confined  solely  to  the  administration  of  drugs;  nor  is  surgery 
limited  to  the  knife.  When  a  physician  advises  his  patient  to  travel 
for  his  health,  he  is  practicing  medicine.  Broadly  speaking  and  within 
the  spirit  if  not  the  letter,  also,  of  all  such  laws  one  is  practicing 
medicine  when  he  visits  his  patient,  examines  him,  determines  the 
nature  of  the  disease  and  prescribes  the  remedy  he  deems  appropriate.41 

Thus  medicine  and  surgery,  not  only  within  the  common  but  within 
the  adjudged  meaning  as  well,  cover  a  wide  portion  of  the  domain  of 
healing.  In  point  of  fact,  the  meaning  and  intent  of  these  laws  is  so 
broad  that  it  may  and  should  be  held  to  cover  all  those  persons  who 
deny  that  they  "practice  medicine,"  but  claim  only  "to  treat,"  "to 
heal,"  "to  remove  cause,"  "to  pray  for  the  intercession  of  Deity"  and 
in  fact  any  and  all  of  the  numerous  systems  in  which  either  material 
or  immaterial  means  may  be  employed  in  ministering  to  the  wants 
of  suffering  humanity.42 

And  any  regulation  of  the  "practice  of  medicine"  should  be  taken 
to  be  directed  against  any  unauthorized  person  who  attempts  to 
treat  any  physical  ailment  by  whatsoever  system  he  may  choose.  And 
not  only  against  one  who  practices  medicine  and  surgery  and  obstet- 
rics as  those  terms  are  usually  and  generally  understood.  For  the 
object  of  such  laws  is  to  protect  the  afflicted  from  the  pretensions  of 
the  ignorant  and  avaricious,  no  matter  whether  the  person  pretending 
to  heal  bodily  or  mental  ailments  does  or  does  not  follow  the  beaten 
paths  and  establish  usages.  In  the  construction  of  such  laws,  effect 
must  be  given  to  the  intent  of  the  legislature,  and  hence  these  measures 

40.  Territorial  Acts  of  New  Mexico,  1903. 
Territory  v.  Lotspeich  (N.  Mex.),  94  Pac.  1025. 

41.  State  v.  Smith,  233  Mo.  242. 

42.  State  v.  Johnson  (Kan.),  114  Pac.  390. 


79 

should  be  directed  against  all  physicians  whether  they  profess  to  attack 
a  malady  or  a  cause.  It  is  really  quite  immaterial  what  such  a  person 
is  pretending  to  do  for  all  are  treating  an  "ailment"  as  that  word  is 
commonly  understood.  All  wish  to  restore  their  patients  or  whatsoever 
they  may  choose  to  call  them  to  sound  bodily  and  mental  condition. 
And  that  is  of  the  essence  of  the  "practice  of  medicine."43 

§  30. — "Treat,  Operate  On" 
The  word  "treat"  may  be  construed  as  not  necessarily  implying 
the  use  of  medicines  or  drugs  of  some  sort.  Many  forms  of  disease 
are  treated  by  attention  to  diet,  habits  and  mode  of  life,  without 
resorting  to  medical  remedies.  Medicine  is  the  art  of  understanding 
diseases  and  curing  or  relieving  them  when  possible.  Medicine  is  that 
branch  of  physic  which  relates  to  the  healing  of  diseases.  Nor  need 
the  words  "operate  on"  be  taken  as  implying  the  use  of  instruments. 
Many  minor  operations  are  effected  without  the  use  of  instruments 
by  mere  pressure,  extension  and  flexion.  This  implies  some  knowledge 
of  anatomy  and  some  skill.  Thus  the  act  of  healing  is  not  restricted 
to  any  particular  method  or  remedy.  The  various  methods  are  innum- 
erable considering  what  are  used  and  what  have  been  discarded.  It 
would  seem  that  all  these  various  systems  might  be  covered  by  the 
language  "treat,  operate  on,  etc.,"  which  in  turn  is  included  within  the 
phrase  of  larger  meaninng  "practice  of  medicine."44 

§  31. — "Prescribing  Remedies" 

A  jury  was  instructed  that  to  "prescribe  remedies"  is  to  write  or 
to  give  medical  direction  to  indicate  remedies.  But  it  is  not  necessary 
that  the  prescription  be  in  writing.  A  remedy  may  be  given  or  indi- 
cated verbally.  Any  direction  given  to  a  patient  for  drugs,  medicines 
or  other  remedies  for  the  cure  of  bodily  diseases,  directing  how  they 
are  to  be  applied  to  or  used  by  the  patients  is  prescribing  remedies 
within  the  meaning  of  most  of  these  laws.45 

The  Iowa  act  was  construed  as  evincing  an  intent  on  the  part  of 
the  legislature  to  include  not  only  the  person  who  professes  to  be  a 
physician,  but  also  the  person  who  simply  undertakes  "to  prescribe 
and  furnish  remedies"  for  the  sick.  Under  such  an  interpretation  it 
would  not  be  error  to  instruct  a  jury  that  the  "practice  of  medicine" 
is  somewhat  analogous  to  "prescribing  and  furnishing  remedies"  for 

43.  Art.  I,  Ch.  55,  Compiled  Statutes  Nebraska. 
Little  v.  State,  60  Neb.  749. 

44.  Eastman  v.  People,  71  111.  App.  236. 

45.  State  v.  Lawson  (Del.),  65  Atl.  593. 


80 

the  sick.  And  further,  a  jury  could  be  instructed  that  if  after  diag- 
nosing a  case,  a  person  undertook  to  determine  for  a  patient  the  remedy 
best  suited  to  his  ailment,  such  an  act  would  be  prescribing  medicine 
for  the  sick  within  the  meaning  of  the  statute.  Any  person  who  in 
catering  to  the  patronage  of  the  sick  assures  them  of  his  ability  to 
help  them  and  supplies  them  with  an  alleged  appropriate  remedy,  giving 
instructions  for  its  application,  would  seem  to  come  within  the  mean- 
ing of  such  a  law.  The  fact  that  the  substance  so  employed  as  a 
remedial  agent  may  have  value  as  a  food  will  not  deprive  it  of  its 
character  as  a  medicine  if  it  be  so  employed.  "Medicine"  as  defined  by 
Webster  is  any  substance  administered  in  the  treatment  of  disease ; 
a  remedial  agent;  a  remedy.46 

The  seal  placed  on  the  lips  of  the  physician  in  many  statutes  relates 
only  to  information  necessary  to  enable  him  "to  prescribe"  for  a  given 
patient  as  a  physician.  The  word  "prescribe"  is  not  here  to  be  used 
in  its  most  limited  sense  of  writing  an  order  upon  an  apothecary  for 
specific  drugs,  but  should  be  given  as  liberal  and  as  enlarged  an  effect 
as  the  word  itself  will  bear  in  the  connection  found.  The  word 
"prescribe"  when  used  as  applicable  to  physicians  embodies  the  pur- 
pose of  cure,  remedy  or  alleviation.  The  word  means  to  advise,  appoint 
or  designate  as  a  remedy  for  a  disease.  The  purpose  of  curing  or 
alleviating  is  an  essential  element  in  the  meaning  of  the  words  "to 
prescribe  as  a  physician"  as  used  in  these  laws.  And  the  prohibition 
against  disclosing  information  only  applies  when  such  a  purpose  is 

present.47 

§  32. — The  Practice  of  Medicine  a  Business 

The  word  "practicing"  in  respect  of  the  subject  in  connection  with 
which  it  is  used  may  be  taken  as  indicating  the  pursuit  of  a  business ; 
as,  for  example,  practicing  medicine.48 

When  we  say  that  any  one  is  practicing  medicine  or  surgery  or 
osteopathy,  we  mean  that  he  is  engaged  in  that  line  of  work  as  a 
business.  That  he  is  holding  himself  out  as  being  so  engaged  or  that 
for  a  consideration  he  is  treating  those  who  will  accept  his  professional 
services.  This  concept  would  not,  as  a  matter  of  course,  be  applied  to 
one  who  incidentally  and  gratuitously  suggests  or  puts  into  operation 
some  method  of  treatment  in  the  case  of  one  who  is  sick.  But  he 
who  has  chosen  the  practice  of  medicine  as  a  calling  and  who  adver- 
tises to  that  end  is  practicing  medicine  as  a  business.49 


46.  Ch.  17,  Iowa  Code,  Sec.  2579. 
State  v.  Bresee,  137  Iowa  114. 

47.  In  re  Bruendl's  Will,  102  Wis.  45. 

48.  Payne  v.  State,  112  Tenn.  587. 

49.  Ex  parte  Greenall,  153  Cal.  767. 


81 

The  use  of  the  title  "healer"  by  a  person  to  indicate  that  he  is 
engaged  in  the  business  of  healing  the  sick  for  hire  and  who  has  an 
office  or  place  of  business  where  he  can  be  seen  by  his  patients  is 
"practicing  medicine."  And  if  a  statute  lays  hands  on  commercial  heal- 
ing as  a  money-making  occupation,  business  or  profession  regardless 
of  the  method  employed,  then  any  system  of  "healing"  in  which  such 
a  course  is  pursued  would  be  within  the  intent  of  the  law.50 

Professing  to  cure  for  pay  is  the  practice  of  medicine.  The  system 
or  method  used  is  immaterial,  the  fact  alone  which  is  of  importance 
is  whether  or  no  a  charge  was  made  for  the  services  rendered.  If 
that  be  done,  then  there  is  a  violation  of  the  law  for  which  there 
may  be  a  prosecution.51 

§  33. — Advertising  as  Evidence  of  the  Practice  of  Medicine 
It  has  been  contended  that  the  operation  of  these  statutes  should 
be  limited  to  those  professing  or  undertaking  to  practice  medicine  and 
surgery.  But  surely  a  state  may  determine  what  acts  constitute  the 
practice  of  medicine  and  may  impose  conditions  on  the  exercise  of 
that  privilege.  Hence  it  is  manifest  that  the  publication  of  a  series 
of  articles  in  a  newspaper  advertising  a  "physician"  and  his  system  of 
healing  could  be  made  the  overt  act  which  evidences  the  violation  of 
the  law  or  the  attempt  to  heal  any  person  by  this  system  and  all  of 
which  would  be  "the  practice  of  medicine."52 

Again  the  securing  or  attempt  to  secure  patients  through  advertis- 
ing "marvelous  cures"  and  that  the  patients  will  "reap  rich  rewards" 
under  certain  new  methods  of  treatment  and  then  operating  on  or 
treating  any  persons  so  secured  is  practicing  medicine  within  the  mean- 
ing of  the  statute  which  defines  the  "practice  of  medicine"  as  "treating, 
operating  on  or  prescribing  for  any  physical  ailment  of  another."  Under 
such  language  rubbing  the  affected  parts  of  a  person  for  any  physical 
ailment  is  practicing  medicine  and  if  a  "physician"  is  unlicensed  he  is 
practicing  illegally.53 

Advertising  one's  business  or  calling  to  be  that  of  a  doctor  or  a 
physician  would  bring  such  a  person  under  the  language  of  the  statute 
and  if  he  be  unlicensed  he  could  likewise  be  penalized  thereunder.54 


50.  Smith  v.  People  (Colo.),  177  Pac.  612. 

51.  Newman  v.  State  (Tex.),  124  S.  W.  956. 

52.  State  v.  Corwin  (Iowa),  131  N.  W.  659. 

53.  W.  D.  Jones  v.  People,  84  111.  App.  453. 
Illinois  Medical  Practice  Act  1887,  Sec.  10. 

54.  Illinois  Medical  Practice  Act  1899,   Sec.  7. 
People  v.  Gordon,  194  111.  560. 


82 

Thus  a  practitioner  of  suggestive  therapeutics  should  he  advertise 
in  a  local  paper  as  a  "doctor"  would  be  asserting  to  the  public  that 
he  was  engaged  in  the  practice  of  medicine.  The  mere  fact  that  in  his 
practice  he  did  not  use  drugs  in  any  form  whatever  as  a  medicine  to 
cure  or  heal  the  many  diseases  which  he  professed  to  successfully 
treat  would  not  place  him  in  the  eyes  of  these  statutes  in  the  position 
of  one  not  engaged  in  the  "practice  of  medicine."  Consequently,  when 
such  a  person  holds  himself  out  to  the  public  and  advises  it  that  he 
is  a  "doctor"  located  in  a  definite  place  with  fixed  office  hours,  all 
persons  are  given  to  understand  and  be  informed  that  he  is  at  least 
engaged  in  the  practice  of  healing  or  curing  suffering  humanity  of 
diseases  by  some  method  or  means  adapted  to  that  purpose,  notwith- 
standing the  fact  that  he  disclaims  the  use  of  all  medicines  of  the 
nature  of  drugs  in  his  treatment  of  the  diseases  mentioned.  Such 
advertisements  do  not  profess  that  the  "doctor"  is  a  mere  masseur 
engaged  in  giving  massage  treatment  to  all  persons  who  might  desire 
such,  or  who  had  been  advised  by  their  physicians  to  take  such  treat- 
ment. The  advertisement  generally  goes  further  and  undertakes  to 
assert  that  the  "doctor"  is  learned  in  his  profession  and  competent  to 
diagnose  diseases  and  prescribe  the  treatment  necessary  for  a  cure.  If 
such  a  person  is  exempt  under  the  law,  then  any  unlicensed  person 
may  hold  himself  out  as  a  doctor  and  treat  all  classes  of  diseases  with- 
out administering  drugs  and  not  offend  against  the  law.  Such  a  con- 
struction would  be  inconsistent  with  the  letter  and  the  spirit  of  these 
measures.  Their  very  object  or  purpose  is  to  protect  the  public  at 
large  against  the  ignorant  and  unlearned.  Such  laws  are  to  prohibit 
these  classes  of  "practitioners"  from  holding  themselves  out  to  the 
world  as  doctors  or  physicians  without  having  acquired  any  knowledge 
whatever  of  the  human  system  or  of  the  diseases  and  ailments  with 
which  it  may  be  afflicted.55 

In  not  a  few  acts  regulating  the  practice  of  medicine  the  use  of 
any  letters  or  titles  indicating  that  the  user  is  a  physician  is  made 
evidentiary  of  a  violation  of  the  law  by  being  constituted  advertising 
in  a  medical  sense.  As  an  example  of  this,  one  act  reads  that  "the 
use  of  the  letters  M.B.  or  M.D.  or  the  title  Dr.  or  Doctor,  or  any  like 
sign  or  appellation  shall  be  constituted  the  practice  of  medicine."  By 
such  a  provision,  it  is  evidently  intended  to  prevent  persons  not  prop- 
erly educated  in  the  science  from  assuming  to  act  as  physicians.  The 
use  of  such  letters  and  titles  is  palpably  a  fraud  on  the  public  and  one 
capable  of  working  great  evil.    To  protect  the  public,  therefore,  it  has 

55.  Witty  v.  State  (Ind.),  90  N.  E.  627. 
Parks  v.  State,  159  Ind.  211. 


83 

been  deemed  advisable  to  restrain  their  use  and  to  compel  all  those 
entitled  to  prefix  or  append  such  letters  and  titles  to  be  properly  regis- 
tered under  the  law.  Such  laws  should  not  be  construed  so  as  to 
deprive  the  people  of  the  benefits  intended  by  the  act,  but  such  a  con- 
struction should  be  given  them  as  to  carry  into  effect  the  evident 
intent  of  the  legislature.50 

Titles  and  letters  of  this  nature  are  usually  associated  with  prac- 
titioners of  the  regular  schools  who  treat  disease  by  the  administration 
of  remedies  in  the  nature  of  drugs  and  their  compounds  rather  than 
with  practitioners  who  treat  solely  by  appeals  to  Deity,  the  occult,  or 
by  manually  manipulating  the  limbs,  muscles  or  nerves  and  by  flexing 
and  manually  manipulating  the  joints  of  the  body.  And  it  is  practi- 
tioners of  the  regular  schools  rather  than  the  others  that  the  ill  and 
infirm  seeking  relief  usually  expect  to  find  when  entering  a  room  whose 
door  has  lettered  on  it  the  name  of  a  person  preceded  by  the  title  "Dr." 
or  followed  by  the  letters  "M.D."  or  the  words  "Physician  and  Sur- 
geon."57 

§  34. — "Practicing"  Under  the  Direction  of  a  "Licensed 

Physician" 

A  person  not  coming  within  the  exception  of  a  statute  is  within 
its  condemnation  even  though  he  acted  under  the  direction  of  a  regis- 
tered physician.  And  hence,  it  would  be  a  misdirection  to  instruct  a 
jury  that  a  person  not  a  physician  who  administers  drugs  or  remedies 
of  any  nature  or  performs  surgical  operations  is  not  practicing  medi- 
cine simply  because  he  does  only  as  directed  by  the  licensed  physician 
in  whose  immediate  charge  any  patient  might  appear  to  be.  Such  a 
construction  would  protect  an  unregistered  surgeon  in  any  operation 
he  might  choose  to  perform  if  care  were  taken  that  he  be  guided  in 
the  operation  by  a  registered  surgeon.  Such  an  interpretation  would 
nullify  and  defeat  the  beneficent  object  of  the  laws.58 

In  the  same  way,  professing  to  be  an  expert  in  the  treatment  of 
a  given  disease  and  furnishing  remedies  therefor  is  practicing  medi- 
cine although  the  treatment  and  care  of  the  patient  be  under  the  imme- 
diate direction  of  a  licensed  practitioner.  As  an  example  of  this,  a 
person  might  profess  to  be  able  to  cure  alcoholism  by  the  use  of  a 
remedy  which  he  had  discovered.  Such  a  person  might  examine  and 
diagnose  the  complaint  of  the  various  people  coming  to  him  for  treat- 


56.  Ch.  176,  Laws  North  Dakota  1903,  Sec.  21. 
State  v.  Yegge,  19  S.  Dak.  234. 

Hale  v.  State,  58  Ohio  St.  576. 

57.  State  v.  Pollmann,  51  Wash.  110. 

58.  State  v.  Paul,  56  Neb.  369. 


84 

ment  and  he  could  then  place  them  under  the  care  of  a  licensed  physi- 
cian simply  with  the  advice  that  his  remedy  be  administered.  Clearly, 
selling  a  compound  under  such  statements  is  practicing  medicine  even 
though  the  actual  administration  thereof  together  with  the  hours  for 
taking  and  the  quantum  be  subject  to  the  direction  of  a  legal  practi- 
tioner. Such  acts  are  but  evasions  of  the  law  and  it  is  not  by  any 
means  the  sphere  of  the  courts  to  protect  ignorant  or  unscrupulous 
individuals  in  their  endeavor  to  defraud  persons  worn  down  mentally 
and  physically  by  disease  to  such  an  extent  that  they  are  incompetent 
to  judge  for  their  own  welfare.59 

And  again,  a  student  of  dentistry  is  charging  a  patient  for  work, 
although  he  is  under  the  immediate  direction  of  a  licensed  dentist,  is 
nevertheless  practicing  illegally.  Provided,  of  course,  the  student 
actually  be  paid  for  said  work.  In  such  a  case,  if  it  can  be  proven 
that  the  student  receives  the  money  as  a  mere  agent  of  the  licensed 
dentist,  such  proof  would  constitute  a  rebuttal.  But  on  the  other  hand, 
proof  that  the  student  did  the  work  and  personally  received  the  money 
with  a  fair  presumption  that  it  was  for  his  personal  use  would  con- 
stitute a  prima  facie  case  and  the  burden  would  rest  with  the  accused 
to  rebut  the  presumption.  The  mere  working  in  a  dentist's  office  is 
insufficient  to  rebut  a  charge  of  guilt  under  such  circumstances,  espe- 
cially when  the  law  makes  the  receipt  of  money  the  gravamen  of  the 
charge.  Consequently,  instructing  a  jury  to  acquit  an  accused  if  they 
believed  him  to  be  working  under  the  direction  of  a  licensed  dentist 
would  be  improper  in  any  case  in  which  said  accused  had  not  overcome 
the  presumption  that  he  personally  had  been  paid  for  his  work.60 

§  35. — Remedies  Sent  from  an  Adjoining  State 

Oftentimes  the  practice  of  medicine  as  contemplated  by  any  given 
statute  consists  in  the  examination  of  a  patient,  diagnosing  his  case, 
seeing  the  patient  at  stated  intervals,  prescribing  any  necessary  rem- 
edies and  charging  and  accepting  pay  for  such  services.  Under  such 
a  law,  the  mere  fact  that  the  remedies  indicated  and  prescribed  were 
sent  from  an  adjoining  state  would  not  negative  the  fact  that  such 
person  was  practicing  or  attempting  to  practice  medicine  within  the 
jurisdiction  of  the  state  where  either  he  or  his  patient  or  both  resided. 
In  such  a  case,  the  receipt  and  use  of  the  remedy  per  se  is  by  no 
means  germane  to  the  gravamen  of  the  charge.  It  would  really  seem 
immaterial  as  to  whether  or  no  the  remedy  be  used  or  as  to  whence 


59.  Springer  v.  District  of  Columbia,  23  App.  D.  C.  59. 

60.  State  v.  Reed,  68  Ark.  381. 


85 

it  comes.  The  law  makes  the  diagnosis  together  with  prescribing  for 
the  patient  and  the  recipt  of  pay  the  illegal  act.  It  would,  therefore, 
seem  totally  irrelevant  to  this  intent  in  the  law  as  to  what  pharmacist 
the  patient  apply  for  his  drug.01 

§  36. — Ophthalmology 
The  practice  of  medicine  in  its  broad  sense  includes  diagnosing  eye 
troubles,  prescribing  salves  and  washes,  and  fitting  glasses.  The  oph- 
thalmologist as  a  practitioner  performs  these  functions.  Hence,  as  a 
specialist  in  this  particular  field,  he  would  be  practicing  medicine  within 
the  meaning  of  the  law  and  as  a  further  consequence  would  be  amen- 
able thereto.  The  field  of  the  ophthalmologist  though  in  some  measure 
a  limited  one  is  nevertheless  an  extremely  vital  one  and  one  in  which 
the  health  and  welfare  of  the  state  is  as  dependent  as  on  any  other,  and 
in  which  the  functions  of  the  practitioner  must  be  properly  performed. 
For  these  reasons,  therefore,  it  behooves  a  state  under  the  exercise 
of  its  police  power  to  regulate  and  control  such  practitioners  in  addi- 
tion to  those  who  work  in  the  broad  field  of  general  practice.02 

§  37. — Dentistry 
Within  the  scope  of  the  term  "practice  of  medicine"  it  may  be 
said  that  the  practice  of  dentistry  is  included.  For  insofar  as  den- 
tistry is  a  direction  of  medical  science  to  the  prevention  or  elimination 
by  medicinal  and  hygienic  remedies  of  the  causes  and  effects  of  dis- 
ase,  it  forms  a  part  of  the  physician's  practice ;  and  as  it  is  an  appli- 
cation of  surgical  skill,  involving  the  use  of  technical  and  delicate 
instruments  and  the  like,  it  is  to  that  extent  a  division  of  the  surgeon's 
field.  Thus,  generally  speaking,  dentistry  is  the  practice  of  medicine. 
Of  course,  on  grounds  of  policy  and  expediency,  dentistry  may  be 
differentiated  from  the  broader  field  and  separate  measures  may  be 
enacted  for  the  regulation  thereof.  Under  such  laws  it  may  very  well 
be  that  a  dentist  is  not  practicing  medicine  and  "au  contraire."  Aside 
from  this,  it  would  seem  to  be  a  sound  conclusion  that  the  practice  of 
medicine  includes  the  practice  of  dentistry.63 

§  38.— "Material  Remedy" 
A  "material"  remedy  is  a  "physical"  remedy  and  hence  any  treat- 
ment which  consists  in  rubbing  and  manipulating  the  parts  affected, 
and  in  flexing  and  moving  the  limbs  or  the  like  is  a  "material"  remedy 


61.  State  v.  Davis,  194  Mo.  485. 

62.  State  v.  Blumenthal  (Mo.),  125  S.  W.  11 

63.  State  v.  Taylor,  106  Minn.  218. 


86 

and  the  practice  of  medicine.  The  term  "material"  as  used  in  these 
acts  clearly  cannot  be  taken  as  having  reference  simply  to  drugs  per  se. 
"Material"  means  something  tangible  or  physical  and  a  "material" 
remedy  would  seem  to  have  place  within  the  broader  meaning  of  the 
word  "medicine"  and  the  phrase  "practice  of  medicine."  Any  tangible 
or  physical  system  or  method  of  healing  is  to  be  taken  as  included 
within  such  language.  The  history  of  legislation  in  the  medical  field 
shows  that  these  words  were  added  to  nullify  judicial  decisions,  nar- 
rowing the  term  "practice  of  medicine"  to  those  physicians  and  sur- 
geons who  use  drugs  and  the  knife  only.  Clearly  then,  any  like  narrow 
construction  of  "material  remedy"  would  be  contra  to  the  obvious 
legislative  intent,  a  proposition  to  which  no  court  could  very  well 
subscribe.64 

§  39. — "Mental  Treatment" 

Diagnosing  a  person's  trouble  and  then  treating  such  person  by 
manipulating  the  muscles  and  flexing  the  limbs  is  not  a  "mental  treat- 
ment." But  such  treatment,  while  not  practicing  within  what  we 
would  term  the  common  acceptation  of  that  phrase,  is  treating  patients 
and  human  ailments  without  the  use  of  medicine  or  instruments  and 
consequently  within  the  terms  of  a  statute  so  defining  the  practice  of 
medicine.65 

"Mental  treatment"  has  reference  more  nearly  to  the  systems 
employed  by  those  practitioners  who  rely  entirely  or  in  great  part 
upon  certain  psychic  conditions  or  phenomena,  such  as  the  effect  pro- 
duced by  hypnotism,  mental  suggestion,  the  occult,  and  the  benefit 
derived,  as  some  believe,  by  prayer  to  Deity.  That  is,  in  "mental 
treatment"  the  practitioner  would  be  more  likely  to  use  an  immaterial 
or  intangible  remedy  than  a  material  or  tangible  one.  In  the  construc- 
tion of  such  an  exception  to  a  practice  act,  great  care  should  be  exer- 
cised not  to  unduly  broaden  the  scope  of  this  and  similar  language  and 
thus  permit  an  influx  of  charlatans  and  the  like,  which  would  be 
directly  contrary  to  the  terms  of  the  law. 

§  40. — "Treatment  in  an  Emergency" 
An  emergency  is  a  case  in  which  a  regularly  licensed  physician  is 
not  readily  obtainable.  Many  statutes  except  in  the  definition  of  the 
practice  of  medicine  any  gratuitous  treatment  which  is  rendered  in 
an  emergency.  But  in  this  connection  the  term  "emergency"  is  taken 
as  having  reference  to  only  an  exigency  of  so  pressing  a  character 

64.  Illinois  Medical  Practice  Act  1899,  Sec.  7. 
People  v.  B.  E.  Jones,  92  111.  App.  447. 

65.  People  v.  Gordon,  194  111.  560. 


87 

that  some  kind  of  action  must  be  taken  "eo  instante"  and  this  prior 
to  even  an  attempt  at  obtaining  a  licensed  physician.  As  for  instance, 
a  person  who  is  in  a  remote  and  isolated  region  sustains  an  injury 
and  calls  in  a  person  not  a  licensed  practitioner  to  render  immediate 
service.  The  aid  therein  rendered  would  be  in  an  "emergency"  which 
would  clearly  justify  any  services  of  a  medical  nature  that  might  have 
been  afforded.  And  further,  under  such  circumstances,  humanity  and 
decency  would  require  that  such  a  physician  be  not  liable  in  a  criminal 
prosecution  for  so  doing. 

But,  however,  if  under  ordinary  circumstances  a  person  calls  in 
a  member  of  a  school  of  physicians  or  a  given  individual  who  is  not 
a  legally  licensed  practitioner  simply  through  a  preference  for  or 
leaning  toward  the  said  school  or  individual,  such  a  case  would  not  be 
an  emergency  within  the  contemplation  of  the  statute.  Therefore,  any 
physician  who  treats  a  patient  under  such  circumstances  is,  if  he  be  not 
licensed,  violating  the  law,  for  which  he  should  be  held  liable  in  a 
criminal  prosecution.66 

§  41. — Itinerant  Physicians 

An  itinerant  physician  has  been  defined  as  any  person  who  travels 
from  place  to  place  professing  to  treat  diseases,  injuries  and  the  like 
in  any  way  and  by  any  system.67 

But  a  physician  who  maintains  an  office  in  several  cities  with  head- 
quarters in  one  of  them  where  he  may  receive  his  mail  is  not  a  traveling 
or  itinerant  physician  simply  because  he  goes  from  one  town  to  another 
in  order  to  see  his  patients  and  that  they  may  call  on  him  at  one  of 
his  several  offices,  as  the  case  may  require.68 

Thus  it  would  seem  that  there  should  be  added  to  the  definition  of 
this  class  of  practitioners  some  such  language  as  this  — "and  who  has 
no  office  or  definite  permanent  place  of  business  wherein  to  pursue  his 
profession  and  receive  calls  from  his  patients."  It  may  very  well  be 
contrary  to  the  policy  of  some  states  to  allow  physicians  to  so  pass 
from  city  to  city  and  be  not  deemed  itinerant  physicians.  Iowa,  for 
example,  differentiates  between  physicians  having  an  office  in  one 
locality  for  three  years  or  more  and  those  who  have  moved  from  one 
place  to  another  frequently.  It  need  not  follow  though  that  all  physi- 
cians who  move  from  place  to  place  are  objectionable.  Yet,  on  the 
whole,  the  permanent  resident  is  to  be  preferred  to  the  practitioner 


66.  People  v.  Lee  Wah,  71  Cal.  80. 

67.  Ch.  150,  West  Virginia  Code,  Sec.  14. 
State  v.  Ragland,  31  W.  Va.  453. 

68.  Adams  v.  State,  45  Tex.  Cr.  Rep.  566. 


who  is  likely  to  have  a  tendency  toward  the  treatment  of  "chronic 
diseases  and  sensational  advertising."  That  is,  he  would  yield  the  more 
readily  to  fraudulent  methods  of  practice.  On  this  ground  then,  it 
might  be  well  to  consider  any  physician  who  moves  about  from  town 
to  town  as  an  "itinerant  practitioner"  and  to  hold  him  amenable  to 
the  law  that  may  have  been  enacted  for  their  regulation,  whether  or  no 
he  has  offices  in  each  one  of  the  several  cities  which  he  may  visit.  It 
would,  therefore,  seem  that  there  should  be  added  to  the  definition  of 
the  term  "itinerant  physician"  the  further  words  "in  any  one  town," 
so  as  to  read,  "who  has  no  office  nor  definite  permanent  place  of 
business  in  any  one  town." 

§  42. — Medical  Practice  Acts  as  Construed  by  the  "Minority" 
It  has  been  noted  from  time  to  time  that  there  are  jurisdictions 
in  which  the  courts  have  come  to  contrary  conclusions  and  have  dis- 
covered other  intents  in  a  given  law  than  those  set  forth  ut  supra. 
These  courts  have  based  their  opinions  in  the  main,  perhaps,  on  a 
more  narrow  view  of  the  several  laws,  that  is,  have  construed  such 
laws  more  strictly.  In  the  light,  however,  of  a  minute  analysis  of 
such  legislation  and  its  purport,  it  would  seem  that  the  rules  of  strict 
construction  were  inapplicable  thereto.  Thus,  these  courts  would  seem 
to  have  been  in  error  in  limine.  Again,  these  opinions  have  been  based 
on  a  fallacious  definition  of  the  word  "medicine"  and  this  too  would 
seem  to  be  an  untenable  position  to  be  taken.  Hence,  if  a  court  is 
indeed  to  give  effect  to  the  intention  of  the  law-making  body  as 
evidenced  in  the  various  statutes,  that  end  would  never  obtain  through 
a  strict  construction  or  a  fallacious  interpretation  of  a  word  as  the 
several  jurisdictions  would  seem  to  argue.69 

These  several  courts  in  an  apparently  honest  endeavor  to  construe 
the  law  at  bar  recognize  that  the  intention  of  the  legislature  must  be 
carried  out.  But  as  these  laws  are  promptly  designated  as  "penal"  or  as 
"derogatory  of  common  law  rights"  and  the  like,  it  will  be  seen  that 


69.  State  v.  Mylod,  20  R.  I.  643. 
State  v.  Beck,  21  R.  I.  288. 
Smith  v.  Lane,  24  Hun.  632  (N.  Y.). 
Bennett  v.  Ware,  4  Ga.  App.  293. 
State  v.  Liffring,  6  Ohio  St.  39. 
State  v.  Herring,  70  N.  J.  L.  34. 
Hayden  v.  State,  81  Miss.  291. 
Foo  Lun  v.  State,  84  Ark.  475. 
State  v.  McKnight,  131  N.  C.  717. 
State  v.  Biggs,  133  N.  C.  729. 
State  v.  Heffernan,  28  R.  I.  20. 
Nelson  v.  State,  108  Ky.  769. 


89 

the  rule  of  giving  effect  to  the  legislative  intent  can  have  but  little 
if  any  beneficial  effect.  In  both  the  cases  of  State  v.  Mylod69  and 
State  v.  Beck69  the  courts  recognize  the  rule  as  to  the  legislative  intent. 
And  again,  in  State  v.  Biggs09  the  opinion  of  the  court  is  based  on 
somewhat  analogous  reasoning.  In  this  latter  case,  the  court  argues 
that  "the  act  of  1903  of  the  North  Carolina  legislature  must  be  con- 
strued most  strongly  against  the  corporation  in  whose  supposed  inter- 
ests it  was  evidently  drafted  and  not  solely  in  the  interests  of  the 
public."  As  numerous  jurisdictions  have  pointed  out,  it  would  be 
almost  impossible  to  enact  restrictive  legislation  that  did  not  confer 
a  benefit  on  someone  other  than  the  public.  But  it  would  be  most 
illogical  to  conclude  therefrom  that  consequently  there  is  no  public 
benefit  attaching  to  such  a  law  and,  ipso  facto,  to  apply  thereto  the 
rules  of  strict  construction.  Now  it  can  be  seen  beyond  a  reasonable 
doubt  that  acts  regulatory  of  physicians  and  the  like  while  benefiting 
in  a  considerable  degree  a  given  class  of  physicians  are  above  all  else 
clearly  remedial  measures  having  for  their  chief  purpose  the  protec- 
tion of  the  people  from  imposition  by  charlatans  and  quacks  who, 
under  the  claim  of  being  doctors  and  able  to  cure  the  sick,  jeopardize 
the  life  or  at  the  very  least  the  health  of  their  victims.70 

It  is  submitted  that  it  may  well  be  doubted  that  the  statutes  at  bar 
in  the  cases  cited  had  a  contrary  purpose  to  that  of  protecting  the 
people.  To  construe  them  as  penal  or  as  derogatory  of  common-law 
rights  is  subversive  of  the  principle  established  in  the  quotation,  "Sic 
utere  tuo  ut  alienum  non  laedas."  Moreover,  the  practice  of  medicine 
is  not  a  right,  but  a  mere  privilege  of  which  the  physician  may  be 
divested  in  the  common  interest.71 

No  state  can  stand  on  a  doctrine  of  unlimited  individualism  nor, 
it  is  submitted,  was  our  government  founded  on  any  such  principle. 
And  further,  the  adoption  of  the  Bill  of  Rights  or  any  other  such 
instrument  does  not  in  a  considerable  degree  prove  to  the  contrary. 
It  is  safe  to  conclude  that  State  v.  Mylod69  and  cases  based  on  similar 
reasoning  cannot  possibly  be  considered  authorities  to-day.  Nor  can 
they  in  any  way  have  place  under  the  principle  of  "steri  decisis." 
It  is  submitted  that  a  case  based  on  a  wrong  principle  should  at  least 


70.  Collins  v.  Texas,  32  Sup.  Ct.  Rep.  286  (U.  S.). 
Dent  v.  West  Virginia,  129  U.  S.  114. 

Bragg  v.  State,  134  Ala.  165. 
People  v.  Allcutt,  102  N.  Y.  Supp.  678. 

71.  Hawker  v.  New  York,  170  U.  S.  189. 
Watson  v.  Maryland,  218  U.  S.  173. 
Collins  v.  Texas,  32  Sup.  Ct.  Rep.  286. 


90 

be  distinguished  if  it  be  impossible  to  overrule  it.  The  application  of 
such  a  principle  is  not  a  question  of  judge-made  law.  For  to  disaffirm 
or  to  distinguish  a  case  in  which  a  wrong  principle  is  asserted  is  not 
making  law.  On  the  contrary,  it  is  asserting  the  true  law  and 
applying  it. 

Again,  in  State  v.  Biggs69  the  court  advances  the  argument  that 
a  legislature  cannot  enact  "the  practice  of  medicine  and  surgery  shall 
mean  practice  without  medicine  and  surgery."  Again  in  State  v. 
McKnight69  it  is  said  that  one  cannot  practice  medicine  and  surgery 
without  the  use  of  "drugs,  medicine  or  surgery."  The  same  idea  is 
to  be  noticed  in  Smith  v.  Lane,  State  v.  Liffring,  Hayden  v.  State, 
State  v.  Herring,  Bennett  v.  Ware,  State  v.  Heffernan,  Foo  Lun  v. 
State  and  Nelson  v.  State.69  Most  of  these  cases  in  the  utter  absurdity 
of  their  conclusions  speak  for  themselves,  witness  the  Biggs  and  Nelson 
cases.  But  lest  there  be  some  lingering  doubt  as  to  the  definition  of 
the  word  "medicine"  let  it  be  at  once  said  that  all  these  cases  are  in 
some  measure  based  on  the  fallacious  conception  of  that  term.  Further- 
more, "medicine"  is  by  no  means  always  synonymous  with  "drug."  And 
that  any  legislature  could  have  so  used  it  to  the  subversion  of  the 
public  safety,  it  is  submitted  would  be  most  difficult  to  prove.72 

People  v.  Allcutt72  has  disaffirmed  Smith  v.  Lane69  and  has  disap- 
proved State  v.  Mylod.69  And  State  v.  Liffring69  has  been  explained 
and  distinguished  in  State  v.  Gravett  and  State  v.  Marble.73 

Again  the  effect  of  Nelson  v.  State  is  rendered  null  by  the  subse- 
quent enactment  of  the  Kentucky  legislature  making  osteopathy  the 
practice  of  medicine  in  the  Act  of  1904.  These  cases,  therefore,  would 
seem  to  be  but  anomalies  in  the  law  and  as  such  can  be  given  but  scant 
if  any  consideration.  In  the  doctrine  of  "noscitur  a  sociis"  the  courts 
for  some  time  put  an  effective  quietus  to  unlimited  prosecutions  under 
the  then  law.  This  was  because  the  language  "medicine,  drug  or  any 
other  agency"  was  limited  to  have  reference  to  treatment  by  drugs 
alone.  Of  course,  when  it  is  seen  that  medicine  and  drug  are  not 
synonymous,  the  rule  can  have  no  application.74 

Moreover,  it  is  evident  by  a  mere  perusal  of  such  a  clause  that  a 
legislature  intends  to  include  under  the  language  "practice  of  medicine" 
the  use  of  every  curative  agency  for  the  relief  of  any  infirmity,  injury 
or  disease.     In  contending  that  the  words  "other  agency"  must  be 


72.  People  v.  Allcutt,  102  N.  Y.  Supp.  678. 

73.  65  Ohio  St.  289,  72  Ohio  St.  21. 

74.  State  v.  Edmunds,  127  Iowa  333. 
State  v.  Gravett,  65  Ohio  St.  '289. 
State  v.  Marble,  72  Ohio  St.  21. 


91 

construed  as  meaning  "drug  or  medicine"  would  be  to  make    a  statute 
read  as  follows : 

"Prescribe  or  direct  any  drug  or  medicine  or  other  drug  or  medicine 
for  the  treatment,  etc.,  of  any  bodily  injury,  infirmity  or  disease." 

It  is  submitted  that  a  proposition  so  absurd  cannot  be  attributed  to 
any  legislative  mind.  The  rule  "noscitur  a  sociis"  does  not  have  appli- 
cation except  where  there  is  doubt.  Can  it  be  asserted  that  by  such 
language  as  is  here  being  discussed,  a  legislature  could  have  any  other 
intent  than  that  the  regulation  of  the  art  of  healing  should  include 
any  and  every  system  imaginable? 

Again,  translating  "other  agency"  as  meaning  "drug  or  medicine" 
would  be  to  permit  the  treatment,  cure  and  relief  of  bodily  injury  to 
anyone,  however  incompetent.  That  is  to  say,  to  any  person  pretending 
to  practice  surgery  or  obstetrics  provided  he  does  not  prescribe  a  drug 
or  medicine.  Amputation  or  other  vital  surgical  operations  are  to  be 
left  in  the  hands  of  the  ignorant  or  the  uneducated  while  a  repeated 
prescribing  of  some  well-known  remedy  for  an  insignificant  ailment 
is  to  be  forbidden  unless  the  prescriber  has  proven  his  competency 
under  the  statute !  It  has  been  repeatedly  said  that  these  laws  are  to 
protect  the  life  and  health  of  the  people  by  requiring  that  all  persons 
pursuing  callings  that  involve  such  protection  should  have  the  skill, 
integrity,  knowledge  and  other  personal  attributes  or  characteristics 
that  a  given  statute  may  set  forth.  These  laws  then  must  be  construed 
to  the  end  that  the  legislative  intent  may  be  carried  out.75 

When  a  legislature  says  that  not  only  the  prescribing  of  drugs  and 
medicine,  but  of  any  other  agency  as  well  in  the  treatment  of  disease 
is-  to  constitute  the  practice  of  medicine,  then  plainly  something  is 
meant  by  the  use  of  the  words  "other  agency."  A  legislature  does 
not  insert  such  language  as  mere  useless  verbiage.  And  in  the  con- 
struction of  a  statute,  all  the  language  must  be  considered  and  rendered 
effective.  No  language  should  be  construed  so  as  to  render  it  null 
and  void.  Clearly  then,  a  court  cannot  so  construe  "other  agency"  as 
to  exclude  from  the  definition  of  the  "practice  of  medicine"  any  and 
every  curative  agent  of  whatsoever  kind ;  whether  it  be  solid,  liquid  or 
volatile;  whether  mineral,  vegetable  or  organic;  whether  taken  inter- 
nally or  externally ;  whether  it  be  material  or  immaterial ;  or  whether 
the  cure  be  attempted  through  man  alone,  or  through  the  interposition 
of  divine  Providence.  All  are  the  practice  of  medicine  and  must  be  so 
construed. 


75.  Fowler  v.  Board,  50  La.  Ann.  1373. 
Dent  v.  West  Virginia,  129  U.  S.  114. 
Bragg  v.  State,  134  Ala.  165. 
People  v.  Allcutt,  182  N.  Y.  Supp.  678. 


92 

In  State  v.  Mylod69  it  was  objected  that  the  language  of  the  act 
could  not  be  so  construed  as  to  include  Christian  Science  treatment. 
It  was  asserted  further  that  one  who  "healed"  by  this  system  did  not 
attempt  to  practice  medicine  and  in  fact  always  denied  that  he  prac- 
ticed medicine,  assuring  those  who  came  for  "treatments"  that  it  is 
God  alone  who  "heals,"  acting  through  the  human  mind  and  that  all  the 
"healer"  does  is  to  engage  in  silent  prayer  for  the  person  desiring  to 
be  "healed."  However,  the  mere  fact  that  a  person  does  not  call  him- 
self a  physician  and  does  not  claim  to  practice  medicine  should  cer- 
tainly not  be  taken  as  conclusively  rebutting  a  presumption  of  guilt 
under  statutory  charge  of  practicing  medicine  without  a  license.  The 
fact  that  one  claims  to  "heal"  and  that  people  regard  such  "healer" 
as  one  able  to  help  them  remains.  It  is  the  effect  which  this  claim 
produces  that  is  of  importance  and  which  must  be  negatived.76 

It  is  not  necessary  that  one  should  administer  internal  remedies  to 
practice  medicine  within  the  meaning  of  the  law,  nor  even  that  one  be 
dependent  alone  on  the  arts  of  man  in  the  system  of  healing  he  may 
profess  to  follow.77 

Again,  it  is  argued  that  the  offering  of  prayer  to  God  for  the 
recovery  of  the  sick  is  not  against  the  public  health  or  the  public 
morals  or  public  safety  or  public  welfare.  Nor  is  it  from  this  point 
of  view  that  prayer  is  made  the  practice  of  medicine.  The  point  is 
that  there  are  ills,  so-called  contagious  diseases,  which  all  people  do 
not  believe  can  be  cured  by  divine  aid.  But  the  "healers"  who  practice 
this  system  claim  to  cure  them  or  claim  that  a  person  so  afflicted  can 
be  relieved  by  prayer.  And  there  are  people  willing  to  give  credence 
to  this  assertion.  Now,  it  is  in  this  belief  of  this  assertion  that  the 
evil  lies.  For  although  it  is  often  the  individual  alone  who  suffers  from 
a  want  of  proper  attention,  yet  in  cases  of  so-called  contagious  and 
infectious  diseases,  an  entire  community  may  be  endangered.  Now, 
our  government  is  founded  largely  on  the  principle  that  no  individual 
or  group  of  individuals  are  to  be  interfered  with  or  endangered  because 
of  the  beliefs,  whether  or  no  they  be  religious  beliefs  of  any  other 
individual  or  group  of  individuals.  But  when  the  Christian  Scientists 
advance  their  theories  of  healing  and  demand  that  they  be  unrestrained 
in  their  administration,  this  sect  is  running  counter  to  one  of  our 
fundamental  theories  of  government  and  to  that  extent  is  interfering 
with  the  beliefs  and  endangering  the  safety  of  by  far  the  larger  majority 
in  any  given  community.     Granting  exception  in  their  favor  is  but 


76.  Bibber  v.  Simpson,  59  Me.  181. 

State  v.  Blumenthal   (Mo.),  125  S.  W.  1188. 

77.  Davidson  v.  Bohlman,  37  Mo.  App.  576. 


93 

placing  the  legislative  stamp  of  approval  on  an  inequitable  and  unjust 
demand.  It  is  submitted  that  such  statutory  exceptions  are  unconsti- 
tutional. Therefore,  to  assume  that  legislation  may  be  directed  only 
against  the  administration  of  drugs  or  the  use  of  the  knife  is  to  take, 
to  say  the  least,  too  narrow  a  view.  The  subject  of  legislation  of 
this  nature  is  not  any  given  system  of  healing.  It  is  the  public  health 
and  general  welfare  of  the  entire  community.78 

§  43. — Summary 
As  a  consequence  of  an  analysis  of  the  various  cases  bearing  upon 
the  construction  and  interpretation  of  medical  practice  acts,  it  would 
seem  that  the  rules  and  principles  of  liberal  construction  should  be 
applied  thereto.  When  it  is  remembered  that  such  legislation  is  for  the 
purpose  of  maintaining  and  promoting  the  public  health  and  general 
welfare,  it  becomes  at  once  apparent  that  any  exceptions  created  by 
either  legislative  enactment  or  by  judicial  interpretation  will  be  most 
decidedly  derogatory  and  subversive  of  those  ends.  Thus,  a  law  on 
this  subject  should  in  the  first  place  be  enacted  to  include  all  systems 
of  healing  and  in  the  second  place,  it  should  be  so  construed  as  to  give 
effect  to  that  express  intent.  Such  a  law  would  permit  any  and  all 
systems  of  "healing"  on  conditions  that  would  apply  equally  to  any 
one.  There  could  be  no  exceptions  under  a  law  based  on  the  principle 
of  being  all  inclusive  and  no  exceptions  could  be  created  by  judicial 
interpretation.  All  that  would  be  essential  would  be  that  the  language 
should  plainly  assert  that  the  terms  of  the  statute  were  applicable  to 
every  system  of  healing  and  that  no  exceptions  were  to  be  permitted 
thereunder,  saving  of  course  gratuitous  treatment  in  an  emergency, 
the  administration  of  family  remedies,  and  of  the  like. 


78.  State  v.  Marble,  72  Ohio  St.,  21. 
State  v.  Heath,  125  la.  585. 


CHAPTER  III 
WHO  ARE  PRACTICING  MEDICINE 


§    44.  In  General. 

§    45.  Eclecticism. 

§    46.  Osteopathy. 

§    47.  Christian  Science. 

§    48.  Chiropractic. 

§    49.  Magnetic  Healing. 

§     50.  Suggestive  Therapeutics. 

§    51.  Midwives  and  Obstetricians. 

§    52.  Cancer  Cures. 

§    53.  Ophthalmology 

§    54.  Itinerant  Physicians  and  Vendors  of  Drugs  and  Proprietary  Remedies. 

§  55.  Treatment  Given  under  the  Direction  of  a  Legally  Registered  Physi- 
cian. 

§  56.  Prescribing  and  Administering  Remedies  for  a  Compensation  and  the 
Like. 

§    57.  Corporations. 

§    58.  Clairvoyant,  Magic  Healers. 

§     59.  Miscellaneous. 

(1)  Mechano -Neural  Therapy. 

(2)  Vital  Healing. 

(3)  Tissue  Foods. 

(4)  Dermatology. 

(5)  Bone  Setting,  Surgery. 

(6)  Medical  Titles. 

(7)  Advertising. 

(S)  Furnishing  Medicine. 
(3)  Nursing. 

(10)  Acting  in  an  Emergency. 
§    60.  General  Summary  of  Chapter  III. 


§  44. — In  General 
In  attempting  to  determine  "who  are  practicing  medicine"  it  is  well 
to  remember  that  a  variety  of  differently  worded  laws  are  being  con- 
sidered by  the  courts  of  approximately  fifty  separate  and  distinct 
jurisdictions.  Having  taken  this  important  factor  into  account,  it 
is  then  the  more  simple  to  explain  some  of  the  distinctions  which  are 
drawn  in  the  seemingly  analogous  situations.  That  is  to  say  the  dif- 
ference made  may  be  attributed  in  part  to  the  dissimilarity  in  language 
in  two  or  more  given  laws;  and  in  part  to  an  almost  natural  conflict 


95 

of  opinions  that  is  bound  to  result  in  the  adjudication  of  similar  issues 
by  several  different  courts,  each  of  which  are  paramount  within  the 
confines  of  its  jurisdiction. 

Notwithstanding  these  facts,  however,  it  is  permissible,  it  would 
seem,  to  assume  the  generality  that  the  laws  regulating  the  practice  of 
medicine  apply  equally  to  all  who  assume  the  duty  of  practicing  the 
art  and  science  of  healing  by  whatsoever  method  the  practitioner  may 
adopt.  For  apparently  it  is  quite  patent  that  the  courts  cannot  divide 
professional  persons  into  classes  and  assert  that  one  class  is  liable  under 
the  law  for  a  violation,  while  another  is  not.  These  laws  are  framed 
not  to  bestow  favor  upon  a  particular  profession,  but  to  discharge 
one  of  the  highest  duties  of  a  state,  that  of  protecting  its  citizens 
from  injury  and  harm,  which  might  devolve  upon  them  through  persons 
possessed  of  insufficient  learning  and  skill  attempting  to  discharge  the 
duties  incumbent  upon  the  profession  of  healing  the  sick  and  afflicted.1 

Then  again  the  "practice  of  medicine"  at  least  in  its  popular  sense 
is  generic  in  its  character,-  and  this  too  notwithstanding  the  fact  that 
not  a  few  jurisdictions  place  a  much  more  limited  construction  on 
those  words.3 

In  this  generic  sense  the  words  "practice  of  medicine"  have  refer- 
ence to  the  art  of  healing  by  whatsoever  scientific  or  supposedly  scien- 
tific method  may  be  used.  It  means  the  art  of  preventing,  curing  or 
alleviating  diseases  and  remedying  as  far  as  possible  results  of  violence 
and  accident.  It  further  means  something  which  is  supposed  to  possess 
or  some  method  which  is  supposed  to  possess  curative  power.  Many 
jurisdictions  will,  of  course,  be  inclined  to  question  such  a  definition 
as  is  here  given.  But  if  such  should  be  the  case,  there  is  no  limitation 
upon  the  power  of  a  legislature  which  would  inhibit  it  from  adopting 
such  a  definition  or  a  similar  one  should  it  see  fit.  The  legislature 
may  prohibit  any  one  or  any  class  from  practicing  any  system  for  pay- 
or because  such  a  system  is  fraudulent,  or  because  such  a  system  has 
or  tends  to  have  a  deleterious  effect  on  the  public  at  large.4 

Some  statutes  seem  to  permit  the  practice  of  medicine  by  certain 
drugless  systems  and  the  like.  But  even  in  such  jurisdictions  it  has 
been  held  that  a  person  may  practice  medicine  within  the  meaning  of 


1.  State  v.  Eastman,  199  Ind.  282. 
People  v.  Phippen,  70  Mich.  6. 
State  v.  Bair,  112  Iowa  466. 

2.  Parks  v.  State,  159  Ind.  211. 

3.  Ut  supra,  Ch.  2. 

4.  Bragg  v.  State,  134  Ala.  165. 

Ex  parte  Collins,  57  Tex.  Cr.  Rep.  2. 
Collins  v.  Texas,  32  Sup.  Ct.  Rep.  286. 
Underwood  v.  Scott,  43  Kan.  714. 


96 

the  law  without  the  use  of  drugs  or  the  like.  That  is,  a  person  may 
practice  the  healing  art  or  the  art  or  science  which  relates  to  the  pre- 
vention, cure  or  alleviation  of  disease  without  necessarily  prescribing 
or  dealing  out  a  substance  to  be  used  as  a  medicine.5 

§  45. — Eclecticism 
These  practitioners  have  probably  never  denied  that  they  "practiced 
medicine."  Technically  they  might  have  done  so  under  some  laws. 
This  sect  has,  however,  objected  to  recognizing  the  authority  of  an 
examining  board  on  which  their  school  was  not  represented.  But 
clearly  it  is  not  essential  that  the  legislature  recognize  their  school. 
The  law  may  specify  that  all  who  treat  the  sick  are  practicing  medi- 
cine and  hold  all  amenable  to  the  same  law.  This  may  at  least  be 
done  in  the  interests  of  uniformity,  to  say  nothing  of  the  evil  effect 
which  the  creation  of  sectarian  boards  might  have  on  any  community, 
and  which  is  hereby  prevented.6 

§  46. — Osteopathy 

This  system  of  healing  has  been  frequently  described  as  consisting 
wholly  in  rubbing  and  manipulating  the  affected  parts  with  the  hands 
and  fingers  and  by  flexing  and  moving  the  limbs  of  the  patient  in 
various  ways.  The  practitioners  of  osteopathy  have  at  times  asserted 
that  in  their  treatment  they  do  not  profess  to  cure  any  physical  or 
mental  ailment  because  as  they  claim  the  system  used  is  one  merely 
removing  the  cause. 

OSTEOPATHY  THE  PRACTICE  OF  MEDICINE 

Illinois,  i8p6. 

Under  the  then  law  in  Illinois  it  was  quite  apparent  that  any  person 
who  had  an  office  where  he  received  patients ;  who  visited  such  patients 
at  their  homes ;  who  advertised  his  system  and  skill  therein  by  publi- 
cation in  newspapers,  and  who  professed  an  ability  to  understand  and 
treat  human  ailments  intelligently  and  successfully,  was  "practicing 
medicine."  As  those  terms  were  defined  by  legislative  enactment,  it 
was  unnecessary  for  such  a  person  to  use  drugs  or  instruments.  It  is 
common  knowledge  that  many  minor  operations  are  performed  without 
the  use  of  instruments,  and  that  many  diseases  are  treated  by  diet  and 
the  like.  The  practitioner  of  osteopathy  differs  from  a  masseur  who 
gives  Turkish  baths  and  other  such  treatment.  The  difference  lies 
in  that  the  osteopath  professes  an  ability  to  diagnose  and  prescribe  for 


5.  Comm.  v.  Jewelle,  199  Mass.  558. 

6.  Board  v.  Fowler,  50  La.  Ann.  1358. 


97 

any  diseases,  and  to  have  the  skill  and  judgment  to  effect  cures  by  the 
use  of  his  system.  The  masseur  does  not  lay  claim  to  any  such  ability. 
It  is,  therefore,  incumbent  on  the  legislature  to  compel  the  osteopath 
to  demonstrate  his  ability  by  any  suitable  means  and  to  hold  him 
amenable  to  the  law.7 

Nebraska,  1900. 

Osteopathy  falls  within  the  language  "who  shall  operate  on  or 
profess  to  heal  or  prescribe  for  or  otherwise  treat  any  physical  or 
mental  ailment  of  another"  just  as  clearly  as  those  who  practice 
Christian  Science.  Medical  practice  acts  are  as  much  directed  against 
any  unauthorized  person  who  shall  operate  on  or  profess  to  heal  or 
prescribe  for  or  otherwise  treat  any  physical  or  mental  ailment  of 
another  as  against  one  who  practices  "medicine,  surgery  and  obstetrics," 
as  those  terms  are  usually  and  generally  understood.  Such  a  doctrine 
carries  out  the  legislative  intent  and  effects  the  object  of  the  statute 
which  is  "to  protect  the  afflicted  from  the  pretensions  of  the  ignorant 
and  avaricious"  no  matter  whether  the  person  pretending  to  heal  bodily 
or  mental  ailments  does  or  does  not  profess  to  follow  the  beaten  paths 
and  established  usages.  To  the  argument  that  osteopaths  do  not 
profess  to  heal  any  mental  or  physical  ailment,  but  that  they  merely 
seek  to  remove  the  cause  of  such  ailment  or  disease,  and  therefore 
do  not  come  within  the  law,  it  may  be  said  that  all  physicians  have 
the  same  object  in  view,  to-wit:  the  restoration  of  any  patient  to  sound 
bodily  and  mental  condition.  Whether  a  physician  professes  to  treat 
the  malady  per  se  or  simply  to  remove  its  cause  is  really  immaterial. 
All  are  treating  the  ailment  as  the  word  is  properly  understood. 
Wherefore,  one  who  practices  osteopathy  falls  within  the  provision  of 
the  statute  as  clearly  as  would  an  ordinary  practitioner  or  Christian 
Scientist,  and  is  liable  under  such  statute  if  he  be  not  duly  licensed 
as  by  law  prescribed.8 

Illinois,  ipoo. 

The  maintenance  of  an  office  where  persons  may  be  treated  for 
physical  and  mental  ailments,  and  where  persons  are  so  treated  for  pay, 
was  by  statute  evidentiary  of  practicing  medicine.  Thereunder,  an 
osteopath  who  treated  people  for  disease  by  rubbing  the  affected  parts 
would  clearly  fall  as  a  practitioner  of  medicine.9 


7.  Eastman  v.   People,  71   111.  App.  236. 

8.  Little  v.  State,  60  Neb.  749. 

Art.  1,  Ch.  55,  Nebraska  Com.  Stat. 

9.  People  v.  B.  E.  Jones,  92  111.  App.  447. 
People  v.  W.  D.  Jones,  92  111.  App.  445. 


98 

Ohio,  ipoi. 

An  osteopath  is  practicing  medicine  within  the  meaning  of  his 
statute  which  defines  the  act  as  prescribing  "drugs,  medicine  or  appli- 
ances of  whatever  nature."  The  court  declined  to  apply  the  maxim 
used  in  construing  the  law  in  the  Liffring  case.  The  addition  of  the 
words  of  "whatever  nature"  was  taken  as  expressing  a  legislative  intent 
to  apply  the  law  to  all  practitioners  of  any  system.10 

Alabama,  1902. 

The  fact  that  in  the  practice  of  osteopathy  drugs  and  other  medicinal 
substances  are  not  used  is  immaterial.  Nor  does  the  fact  that  drugs 
and  the  like  are  administered  neither  internally  nor  externally,  or  that 
surgery  as  it  is  generally  known  is  not  resorted  to  in  any  treatments, 
differentiate  it  from  the  practice  of  medicine.  It  is  admitted  that  the 
osteopath  must  know  anatomy,  physiology,  hygiene,  histology  and 
pathology,  just  as  the  regular  practitioner  must  know  them.  For  a 
knowledge  of  these  and  other  subjects  aids  both  the  osteopath  and  the 
physician  to  determine  the  nature  of  a  disease  and  to  apply  the  proper 
treatment  thereto.  Taking  all  of  this  into  consideration,  therefore,  it 
is  highly  proper  to  hold  osteopathy  to  be  the  practice  of  medicine,  and 
the  practitioners  thereof  to  be  responsible  under  the  law.11 

Illinois,  1902. 

Under  the  Illinois  Medical  Practice  Act  of  1899  medical  practi- 
tioners could  be  divided  into  two  classes.  First,  those  who  desired  to 
practice  medicine  and  surgery  in  all  its  branches,  and,  second,  those 
who  desired  to  use  merely  a  drugless  system  of  healing.  Hence,  a 
person  who  diagnosed  cases  and  removed  or  attempted  to  remove  the 
cause  of  any  ailment  by  massage  and  flexing  would  fall  under  the  two 
classes.  Treatment  of  this  sort  is  somewhat  similar  to  osteopathy, 
and  that  system  is  really  something  more  than  what  a  trained  nurse 
might  administer.  It  is  not  perhaps  the  practice  of  medicine  in  that 
drugs  and  surgical  instruments  are  not  used,  but  it  is  practicing  medi- 
cine under  the  statute,  because  the  osteopath  professes  and  attempts 
to  cure  and  heal  without  the  use  of  drugs  and  is  thus  a  drugless 
practitioner  under  the  law.  Advertising  one's  business  or  calling  to 
be  that  of  a  doctor  and  the  administration  of  osteopathic  treatment 
to  patients,  differentiates  osteopathy  from  the  mere  use  of  massage 
and  the  like.  It  is  for  this  reason  that  the  osteopath  can  be  held 
liable  under  the  law.12 


10.  State  v.  Gravett,  65  Ohio  St.  289. 

11.  Bragg  v.  State,  134  Ala.  165. 

12.  People  v.  Gordon,  194  111.  560. 


99 

Alabama,  1906. 

The  doctrine  as  laid  down  in  Bragg  v.  State  was  based  on  sound 
reasoning  and  public  policy.  Consequently  it  is  deemed  inadvisable 
to  change  the  opinion  as  therein  found.  For  the  only  real  difference 
between  the  osteopath  and  the  regular  practitioner  of  medicine  is  one 
of  therapeutics  —  that  branch  of  medical  science  which  consists  of 
the  application  of  remedies  as  a  means  of  cure.  The  result  sought 
by  each  is  the  same  —  the  relief  of  illness.  Hence,  both  practice  the 
art  of  healing  or  curing  human  disease.13 

Washington,   ipop. 

A  person  who  professes  to  be  an  osteopath,  magnetic  or  drugless 
healer  is  practicing  medicine  in  violation  of  the  law  if  he  prefixes 
or  affixes  the  title  "doctor"  or  some  .word  or  the  like  of  similar  import 
to  his  name,  thus  advertising  to  practice  medicine  by  the  use  of  such 
words,  titles  or  the  like,  which  may  be  used  only  by  those  who  are 
legally  entitled  thereto.  The  purpose  of  this  law  being  to  prevent 
deception  and  fraud,  the  interpretation  given  thereto  should  be  such 
as  would  be  most  conducive  to  that  end.  Therefore,  it  makes  no 
difference  if  these  titles  and  abbreviations  are  used  in  conjunction  with 
osteopaths  or  any  other  such  work  in  an  attempt  to  confine  or  limit 
the  meaning  of  the  word  doctor  and  the  like.14 

Iowa,  ipio. 

A  person  who  claims  to  heal  and  to  cure  the  sick  who  apply  to  him 
for  treatment  by  rubbing  and  massaging  the  parts  affected,  and  who 
talked  of  treating  people,  saying  that  he  "rubbed  and  cured  them," 
and  who  charged  and  received  pay  for  such  treatments  would  be 
practicing  medicine  under  the  Iowa  laws.  Such  evidence  would  be 
sufficient  to  sustain  a  conviction  of  practicing  medicine  without  a 
license.15 

Texas,  ipio. 

A  masseur  doctor  who  advertised  himself  as  able  and  willing  to 
cure  various  ills,  and  who  treated  the  patient  who  came  to  him,  was 
practicing  medicine,  although  he  did  not  use  any  drugs  or  the  like, 
for  he  came  within  the  meaning  of  the  language  "any  system  or 
method."16 

Osteopathy  is  the  practice  of  medicine,  though  no  drugs  or  any- 
thing of  that  nature  are  used.17 


13.  Ligon  v.  State  (Ala.),  39  So.  662. 

14.  State  v.  Pollman,  51  Wash.  110. 

15.  State  v.  Yates  (Iowa),  124  N.  W.  174. 

16.  Newman  v.  State  (Tex.),  124  S.  W.  956. 

17.  Ex  parte  Collins,  57  Tex.  Cr.  Rep.  2. 
Texas  Medical  Practice  Act,  1907. 


100 

Texas,  1913. 

A  masseur  who  holds  himself  out  as  a  doctor  or  person  able  or 
willing  to  treat  disease  and  undertakes  to  do  so  and  receives  pay 
therefor,  either  directly  or  indirectly,  is  practicing  medicine  contrary 
to  the  law  if  unlicensed.18 

OSTEOPATHY    NOT    THE    PRACTICE    OF    MEDICINE 

New  York,  1881. 

Manipulation  is  not  the  practice  of  medicine.  The  object  of  the 
legislature  was  simply  to  regulate  the  practice  of  medicine  and  sur- 
gery as  those  terms  are  generally  or  usually  understood.  The  practice 
of  medicine  includes  the  application  and  use  of  medicines  and  drugs 
for  the  purpose  of  curing  disease.  By  the  use  of  manual  manipula- 
tion or  osteopathy  neither  drugs  nor  instruments  are  employed.  There 
is  danger  attached  to  the  use  of  drugs  or  medicines,  but  none  from 
the  practice  of  osteopathy.  Hence  there  is  no  necessity  to  interfere 
with  its  pursuit.  The  system  more  nearly  resembles  nursing  than 
the  practice  of  medicine.19 

Ohio,  1 8 pp. 

Osteopathy  is  not  the  practice  of  medicine  under  a  statute  which 
defines  practice  "as  prescribing  a  drug,  medicine  or  other  agency  to 
effect  the  cure."  By  the  maxim  noscitur  a  sociis  osteopathy  is  not 
an  agency.    The  term  agency  refers  to  a  drug  or  the  like.20 

Kentucky,  ipoo. 

An  osteopath  so  long  as  he  does  not  administer  drugs  or  perform 
surgery  is  not  practicing  medicine.  This  conclusionn  is  based  on 
the  fact  that  the  Kentucky  statute  was  construed  as  being  designed 
to  regulate  those  practitioners  who  employ  drugs  or  the  knife.  This 
an  osteopath  does  not  do  in  following  strictly  the  methods  of  his 
school.  Osteopaths  come  more  nearly  being  nurses  than  practitioners 
of  medicine.21 

North  Carolina,  ipo2. 

Osteopaths  do  not  use  drugs  or  operative  surgery  while  practi- 
tioners of  medicine  do.  The-  law  requires  the  regular  practitioner  to 
be  examined  in  "materia  medica"  and  the  like.  It  can  hardly  be 
conceived  that  an  osteopath  must  also  be  examined  in  such  subjects. 

18.  Milling  v.  State  (Tex.),  150  S.  W.  434. 

19.  Smith  v.  Lane,  24  Hun  632   (N.  Y.). 

20.  State  v.  Liffring,  61  Ohio  St.  39. 

21.  Nelson  v.  State  Board,  108  Ky.  769. 


101 

The  fact  that  an  osteopath  uses  the  title  doctor  is  immaterial.    Osteop- 
athy resembles  nursing  more  than  the  practice  of  medicine.22 

Mississippi,  1903. 

The  practice  of  medicine  suggests  the  use  of  drugs  and  surgical 
appliances,  while  the  osteopath  uses  none  of  these.  Nor  do  the  words 
"appliance  or  agency"  cover  osteopathy.  The  osteopath  does  not  speak 
of  his  method  as  an  appliance  or  agency — there  would  be  an  incon- 
gruity in  doing  so,  and  in  any  strict  and  proper  sense  osteopathy 
cannot  be  denominated  as  an  agency  or  appliance.  Then,  too,  the 
statutory  requirement  of  chemistry  and  materia  medica  cannot  be  of 
much  assistance  to  an  osteopath.  From  all  this  it  would  seem  that 
the  legislature  did  not  intend  to  set  up  a  universal  standard  from 
which  no  one  might  depart.  Hence,  osteopathy  is  not  the  practice 
of  medicine.23 

New  Jersey,  1904. 

The  phrase  "other  agency  or  application"  is  undoubtedly  very  broad 
and  would  usually  be  taken  as  covering  manual  manipulation.  But 
this  phrase  is  conjoined  to  the  terms  "drug  and  medicine"  which  are 
more  special  and  under  the  maxim  noscitur  a  sociis,  its  interpreta- 
tion should  be  such  as  will  confine  it  to  the  class  in  which  its  special 
associates  stand.  In  forbidding  an  unlicensed  person  to  apply  any 
drug  or  medicine  for  remedial  purposes,  the  legislature  plainly  con- 
templated the  use  of  something  other  than  the  natural  facilities — 
some  extraneous  substance.  A  similar  restriction  must  therefore 
attach  to  the  words  "agency  and  application."  Hence  osteopathy  is 
not  the  practice  of  medicine.24 

North  Carolina,  1904. 

The  administration  of  massage,  baths  and  physical  culture  is 
nothing  which  calls  for  an  examination  by  a  learned  board  in  obstetrics, 
therapeutics,  materia  medica  and  other  like  things,  a  knowledge  of 
which  is  so  properly  required  for  one  who  would  serve  the  public 
faithfully  and  honorably  as  a  doctor  of  medicine.25 

Delaware,  1908. 

Treatment  of  patients  simply  by  the  use  of  hypnotism  and  massage 
is  not  practicing  medicine  under  a  statute  which  defines  that  term  as 
"prescribing  remedies  or  performing  surgical  operations,"  the  term 


22.  State  v.  McKnight,  131  N.  C.  717. 

23.  Hayden  v.  State,  81  Miss.  291. 

24.  State  v.  Herring,  70  N.  J.  L.  34. 

25.  State  v.  Biggs,  133  N.  C.  739. 


102 

"remedy"  having  reference  to  drugs.     So  that  if  a  person  advises  the 
use  of  powders,  plasters  and  baths  he  is  practicing  medicine.26 

Colorado,  1912. 

The  Colorado  statute  provides  that  an  osteopath  was  not  included 
thereunder  if  he  did  not  administer  drugs.  Hence,  an  osteopath  could 
use  the  title  "doctor"  and  the  like,  especially  in  conjunction  with  the 
word  "osteopath,"  provided  he  did  not  prescribe  or  administer  drugs. 
It  would  seem  too  that  he  must  have  received  the  degree  of  doctor 
of  osteopathy  from  a  legally  created  college  of  osteopathy  and  have 
a  certificate  from  the  osteopathic  association.27 

SUMMARY 

It  will  be  seen  that  the  states  are  about  equally  divided  in  their 
opinions  as  to  the  appropriate  definition  of  osteopathy.  However, 
much  greater  weight  is  to  be  attached  to  the  opinions  holding  osteopathy 
to  be  the  practice  of  medicine  than  to  those  opinions  which  have  held 
osteopathy  not  to  be  the  practice  of  medicine.  As  we  have  seen  in 
Chapter  2,  these  latter  opinions  are  based  in  great  part  upon  a  fallacy 
which  is  a  misconception  of  the  meaning  of  the  words  "medicine, 
drug,"  and  the  like.  By  giving  these  terms  their  broadest  interpreta- 
tion such  opinions  as  Smith  v.  Lane,  State  v.  LifTring,  Nelson  v.  Board, 
State  v.  McKnight  and  the  others  are  entirely  negatived.  Then,  too, 
the  New  York  case  was  discredited  in  the  later  opinion  as  given  in 
People  v.  Allcutt.28 

While  State  v.  Liffring  was  explained  in  State  v.  Gravett,  and  the 
case  Nelson  v.  Board  is  no  longer  of  weight  in  Kentucky  since  their 
law  was  amended  in  1904  to  include  osteopaths.  In  other  jurisdic- 
tions this  case  may  be  given  such  weight  as  would  seem  to  attach 
thereto,  taking  its  logic  and  reasoning  into  due  consideration.  The 
North  Carolina  cases  are  negatived  from  the  fact  that  they  are  based 
on  the  narrow  conception  of  the  word  medicine.  And  too  an  analysis 
of  those  opinions  would  seem  to  show  a  failure  to  have  grasped  the 
true  purport  of  the  facts  so  that  the  reasoning  is  to  be  given  less 
consideration  than  that  of  such  cases  as  Collins  v.  State,  and  People 
v.  Little.  Again,  in  the  cases  in  which  osteopathy  is  said  to  more 
nearly  resemble  nursing  than  the  practice  of  medicine  it  would  seem 
that  the  courts  have  missed  the  point.  For  as  was  said  in  People  v. 
Gordon  and  in  Collins  v.  Texas,  the  osteopath  in  professing  the  greater 
skill  must  for  that  very  reason  be  differentiated  and  distinguished 


26.  State  v.  Lawson   (Del.),  65  Atl.  593. 

27.  Jones  v.  People  (Colo.),  127  Pac.  125. 

28.  117  App.  Div.  546,  102  N.  Y.  Supp.  678. 


103 

from  a  mere  nurse  or  masseur.  And  further,  it  is  apprehended  that 
the  osteopath  would  not  care  to  have  his  profession  reduced  to  the 
level  of  those  callings.  As  a  consequence,  the  cases  in  which  osteopathy 
is  considered  negatively  may  be  disregarded  and  it  may  be  taken  as 
the  law  that  osteopathy  is  the  practice  of  medicine,  excepting,  of 
course,  those  states  in  which  by  specific  definition  the  practice  of 
osteopathy  may  be  excepted. 

§  47. — Christian  Science 
christian  science  is  the  practice  of  medicine 
Nebraska,  1896. 

It  may  be  conceded  that  perfect  toleration  of  religious  sentiment 
and  the  enjoyment  of  liberty  in  all  religious  matters  is  of  paramount 
importance.  The  exercise  of  the  art  of  healing  for  a  compensation, 
whether  exacted  as  a  fee  or  extended  as  a  gratuity,  cannot  be  classed 
as  an  act  of  worship.  Neither  is  it  the  performance  of  a  religious 
duty.  The  object  of  a  medical  practice  act  is  to  protect  the  afflicted 
from  the  pretensions  of  the  ignorant  and  avaricious,  and  its  provi- 
sions are  not  limited  to  those  who  follow  the  beaten  paths  and  estab- 
lished usages.  If  such  a  person  has  treated  any  physical  or  mental 
ailment  of  another,  then  neither  the  pretense  of  religious  worship  nor 
the  performance  of  any  other  duty  should  have  excepted  him  from 
the  punishment  which  an  infraction  of  the  statute  would  seem  to 
involve.  Hence,  instructions  that  for  a  conviction  such  a  person  must 
be  found  guilty  of  "practicing  medicine,  surgery  and  obstetrics"  as 
generally  or  usually  understood,  are  erroneous.29 

Ohio,  1905. 

Christian  Science  is  the  practice  of  medicine  in  that  treating  persons 
for  a  fee  for  the  purpose  of  curing  or  healing  their  physical  and 
mental  ailments  is  so  defined  under  the  statute.  The  language  of  the 
statute  would  seem  to  imply  that  the  legislature  intended  to  bring 
within  its  meaning  every  person,  who,  for  a  fee,  prescribed  or  recom- 
mended a  cure  for  disease,  even  though  the  cure  was  to  come  not  from 
such  person  himself  but  through  his  intercedence  from  God.  In 
praying  for  the  recovery  of  a  patient  a  Christian  Scientist  is  giving  a 
treatment  to  cure  patients  of  disease,  and  the  patient  pays  therefor. 
He  is  thus  practicing  healing  or  curing  disease.30 

New  York,  ipn. 

The  Christian  Scientist  brings  himself  within  the  meaning  of  the 
statute,  which  says,  "a  person  practices  medicine  within  the  meaning 

29.  State  v.  Bus  well,  40  Neb.  158. 

30.  State  v.  Marble,  72  Ohio  St.  21. 


104 

of  this  article,  except  as  hereinafter  stated,  in  holding  himself  out  as 
being  able  to  diagnose,  treat,  operate,  or  prescribe  for  any  human 
disease,  pain,  injury,  deformity  or  physical  condition,  and  who  shall 
either  offer  or  undertake  by  any  means  or  method  to  diagnose,  treat, 
operate  or  prescribe  for  any  human  disease,  pain,  injury,  deformity  or 
physical  condition."  Nor  would  a  Christian  Scientist  be  protected  by 
the  constitutional  provision  which  permits  the  free  exercise  and  enjoy- 
ment of  religious  profession  and  worship  without  discrimination  or 
preference.  For  the  constitution  further  provides  that  liberty  of  con- 
science should  not  be  so  construed  as  to  excuse  acts  of  licentiousness  or 
justify  practice  inconsistent  with  the  peace  or  safety  of  the  state.31 

For  the  Christian  Scientist  although  claiming  to  derive  his  power 
of  healing  from  the  Supreme  Being,  is  clearly  within  the  meaning  of 
the  New  York  statute,  professing  to  heal  and  cure  physical  and  mental 
ailments.  And  when  the  law  says  that  this  cannot  be  done  without 
a  license,  a  religious  belief  is  no  excuse  for  the  unlawful  act,  for  no 
person  under  the  guise  of  the  principles  and  tenets  of  any  church  may 
violate  the  law  of  the  land.  The  Christian  Scientist  has  the  right  to 
believe  that  he  can  heal  by  prayers,  but  if  he  carries  that  belief  into 
practice  for  hire  and  solicits  patients  by  advertisements,  then  he  exceeds 
his  rights  as  an  individual  under  the  law  and  comes  directly  within  the 
prohibition  contained  in  Article  3  of  the  Constitution  of  the  State  of 
New  York.  He  must  subordinate  his  belief  to  the  rights  of  the  com- 
munity and  of  the  state  as  an  entity,  where  the  free  exercise  of  such 
belief  either  impairs  or  endangers  the  health  of  the  people,  or  tends 
to  place  their  health  in  jeopardy  so  that  the  safety  of  the  state  will 
be  affected.32 

Colorado,  1912. 

A  person  claiming  to  be  a  member  of  a  corporation  entitled  "The 
Divine  Scientific  Healing  Mission"  is  practicing  medicine,  inasmuch 
as  he  attempts  to  treat  and  heal  the  sick  for  pay.  The  statute  lays 
hands  on  commercial  healing  as  a  money-making  occupation,  business 
or  profession,  regardless  of  the  method  of  treatment  or  curative  agency 
employed.  As  a  protection  to  the  public  health,  the  statute  requires 
those  engaged  in  the  business  of  curing  the  sick  to  possess  certain 
qualifications.     One  form  of  examination  is  required  of  all  sorts  of 


31.  New  York  Public  Health  Law,  Sec.  173. 
New  York  Constitution,  Art.  1,  Sec.  3. 

32.  People  v.  Cole,  City  Magistrate's   Court  of  the  City  of  New  York,  First 

Division,  Second  District,  Feb.  11,  1911;  aff'd  People  v.  Cole  (N.  Y.). 
148  N.  Y.  Supp.  708. 
People  v.  Pierson  (N.  Y.),  68  N.  E.  243. 


105 

healers.  All  must  be  examined  in  the  fundamentals  before  they  can 
be  licensed  to  follow  the  business  of  curing  the  sick.  In  the  eye  of  the 
statute,  methods  of  treatment  meet  on  a  level  as  curative  agencies  in 
healing  human  ills.  There  is  no  discrimination,  partiality  or  monopoly. 
As  a  protection  to  the  public  health  the  state  fixes  the  standard  of 
competency  and  makes  the  right  to  engage  in  the  business  dependent 
on  the  possession  of  certain  knowledge.  Nor  is  this  any  interference 
with  a  free  exercise  of  religious  worship.  Herein  the  defendant  was 
engaged  in  a  business  venture,  not  a  religious  exercise.  The  com- 
mercial practice  of  healing  by  prayer  followed  as  a  money-making 
venture  or  occupation  is  the  practice  of  medicine  within  the  plain 
meaning  of  the  statute,  and  such  occupations  must  be  so  held  for  the 
preservation  and  promotion  of  the  health,  safety  and  morals  of  the 
people.33 

CHRISTIAN   SCIENCE   NOT  THE   PRACTICE   OF    MEDICINE 

Rhode  Island,  1898. 

Christian  Science  is  not  the  practice  of  medicine  under  the  general 
laws  of  Rhode  Island,  Ch.  165,  in  that  prayer  alone  is  used  by  these 
persons  and  no  attempt  is  made  to  cure  by  physical  means.  The 
healer  is  simply  desirous  of  turning  the  patient's  thoughts  to  God  and 
toward  the  attainment  of  physical  perfection.  In  this,  there  is  no 
attempt  to  practice  medicine  or  surgery,  or  to  diagnose  cases  or 
prescribe  any  drug  or  medicine.  And  further,  such  a  healer  makes 
no  claim  to  know  anything  about  disease.  The  fact  that  such  a  person 
hands  out  a  card,  advertising  himself  as  a  doctor,  and  giving  office 
hours,  is  to  be  disregarded.  Prayer,  for  those  suffering  from  disease, 
or  words  of  encouragement,  or  the  teaching  that  disease  will  disappear 
and  physical  perfection  be  attained  as  a  result  of  prayer,  cannot  be 
taken  as  in  any  sense  constituting  the  practice  of  medicine.  The  object 
of  such  a  statute  is  to  protect  the  public  from  incompetent  persons 
and  not  from  theories.  The  statute  is  not  to  compel  persons  suffering 
from  disease  to  resort  to  remedies,  but  is  designed  to  secure  for  those 
desiring  remedies,  competent  physicians  to  prepare  and  administer 
such  remedies.34 

SUMMARY 

The  clear  preponderance  of  authority  is  here  to  the  effect  that 
Christian  Science  is  the  practice  of  medicine,  on  the  basis  that  medi- 
cal practice  acts  are  to  be  construed  to  maintain  the  public  health, 
which  the  unrestrained  practice  of  Christian  Science  would  seem  to 


33.  Smith  v.  People  (Colo.),  117  Pac.  612. 

34.  State  v.  Mylod,  20  R.  I.  643. 


106 

tend  to  endanger.  This  point  the  court  in  State  v.  Mylod  failed  to 
consider.  For  although  the  Christian  Scientist  may  be  entitled  to 
religious  freedom,  nevertheless  allowing  him  too  much  liberty  in  the 
exercise  of  his  beliefs  is  to  endanger  the  public  health  which  medical 
practice  acts  are  primarily  designed  to  promote  and  maintain.  Again 
the  court  is  too  much  given  to  the  narrow  construction  of  the  law 
from  the  point  of  view  that  such  an  act  is  a  penal  statute.  As  has 
been  seen,  a  statute  designed  to  promote  the  general  welfare  and  the, 
like  can  in  no  sense  be  considered  penal.  Nor  can  the  fact  that  the 
statute  is  creating  an  offense,  not  known  to  common  law,  be  taken 
into  consideration  as  against  the  plain  fact  that  medical  practice  acts 
in  general  are  to  protect  the  people  from  ignorant  and  designing  per- 
sons, who  claim  to  be  able  to  cure  them  of  their  ills,  and  also  to 
protect  the  people  against  themselves,  who,  when  ill,  are  ready  to  give 
ear  to  any  one  who  claims  to  help  them.  State  v.  Mylod,  supra,  has 
in  effect  been  much  modified,  it  would  seem,  by  Swarts  v.  Siveny, 
(R.  I.)  85  Atl.  33  (infra  40). 

§  48. — Chiropractic 

chiropractic  the  practice  of  medicine 
Iowa,  io io. 

An  indictment  charged  a  defendant  with  wrongfully,  unlawfully 
and  publicly  professing  to  be  a  doctor,  and  assuming  the  duties  of  that 
profession,  and  then  wrongfully,  falsely,  unlawfully  and  publicly  pro- 
fessing to  cure  and  heal  diseases  by  means  of  a  certain  system  known 
as  chiropractic.  The  evidence  showed  that  the  defendant  treated  for 
a  consideration  and  professed  to  cure  and  heal  diverse  diseases,  that 
he  neither  gave  nor  prescribed  medicine,  and  that  his  system  consisted 
in  hand  manipulation  and  electric  vibrations.  These  acts  were  taken 
as  showing  that  he  was  engaged  in  the  practice  of  medicine.  The 
system  by  which  one  professes  to  heal  is  immaterial.  The  point  is 
that  under  these  laws  no  one  can  undertake  to  treat  and  heal  human 
ailments  without  first  giving  evidence  of  one's  ability  to  follow  such 
a  profession.35 

Iowa,  ipn. 

It  has  been  contended  that  the  operation  of  medical  practice  acts 
should  be  limited  to  those  professing,  or  undertaking,  to  practice  medi- 
cine or  surgery.  But  a  state  may  determine  what  acts  constitute  the 
practice  of  medicine  as  a  physician  and  may  impose  conditions  on 

35.  State  v.  Miller  (Iowa),  124  N.  W.  167. 


107 

the  exercise  of  that  privilege.  Thus  the  Iowa  law  may  be  taken  as 
including  those  who  without  medicine  or  the  practice  of  surgery  pub- 
licly profess  to  cure  and  heal,  and  plainly  such  language  would  cover 
chiropractors.  A  person  who  published  a  series  of  articles  in  a  news- 
paper denominated  "talks  with  a  chiropractor,"  in  which  he  directed 
public  attention  to  the  so-called  chiropractic  system  of  healing  to  the 
shortcomings  of  the  medical  profession  and  especially  to  himself  as  a 
member  of  that  school,  and  also  who  undertook  to  heal  a  number  of 
persons,  and  who  in  doing  so  first  required  them  to  strip  the  back 
to  the  skin  and  lie  on  the  table  in  order  that  he  might  examine  the 
spinal  column  with  his  hands  and  by  sudden  pressure  restore  the 
vertebrae  out  of  place  to  their  normal  position,  is  manifestly  not  only 
publicly  professing  to  cure  and  heal,  but  is  undertaking  so  to  do.30 

Kansas,  ipu. 

Chiropractic  is  the  practice  of  medicine  under  a  law  simply  pro- 
fessing to  regulate  the  practice  of  medicine,  surgery  and  osteopathy. 
One  who  without  registration,  examination  or  attempting  to  procure 
a  license,  endeavors  for  pay  to  practice  chiropractic  by  pretending  to 
adjust  the  spine  of  one  afflicted  with  bodily  infirmities,  and  who  adver- 
tises to  treat  for  pay,  by  chiropractic  spinal  adjustment,  persons  thus 
afflicted,  would  be  guilty  and  liable  under  the  law.  Webster's  New 
International  Dictionary  defines  this  system  as  "chiropractic  is  a  system 
of  work  that  treats  disease  by  manipulation  of  the  spinal  column."  The 
chiropractor  claims  that  the  only  treatment,  so-called,  which  he  uses 
is  not  a  treatment,  but  merely  an  adjustment  of  the  vertebrae  which 
restores  the  vertebrae  and  the  nerves  to  their  normal  position  and  thus 
removes  the  cause  of  the  disease.  In  this  he  is  not  practicing  surgery 
or  medicine,  and  does  not  use  any  manipulations  whatever  other  than 
the  adjustment  of  vertebrae.  But  under  such  language  as  is  used  in  the 
Kansas  law  of  1908  it  may  well  be  said  that  one  whose  vertebrae  are 
partially  displaced,  causing  impairment  of  nerve  function,  is  one 
afflicted  with  bodily  infirmities,  and  that  one  who  restores  the  functions 
of  the  nerve  on  which  maladjusted  vertebrae  had  formerly  pressed 
is  treating  or  attempting  to  treat  such  afflicted  person.  Manifestly, 
it  is  the  object  of  the  legislature  to  protect  the  ignorant  from  impo- 
sition in  the  healing  art.  It  may  very  well  be  that  a  close  construc- 
tion of  the  language  in  this  law  would  not  bring  a  chiropractic  within 
the  meaning  thereof  as  a  physician  or  surgeon,  but  that  his  system 
would  more  nearly  resemble  osteopathy.  However,  medicine  and  sur- 
gery with  which  the  defendant  was  charged  as  attempting  to  practice 


36.  State  v.  Corwin  (Iowa),  131  N.  W.  659. 


108 

is  by  common  use  and  adjudged  meaning  taken  as  covering  a  wide 
portion  of  the  domain  of  healing,  and  should  be  held  to  cover  the 
case  of  one  who  not  claiming  to  be  a  physician  and  surgeon  really 
practices  osteopathy  under  another  guise,  without  having  even  the 
qualifications  of  the  osteopath.37 

Missouri,  ipu. 

The  practice  of  medicine  is  not  confined  to  the  administration  of 
drugs,  nor  is  surgery  limited  to  the  knife.  When  a  physician  advises 
his  patient  to  travel  for  his  health  he  is  practicing  medicine.  Broadly 
speaking,  one  is  practicing  medicine  when  he  visits  his  patient,  examines 
him,  determines  the  nature  of  the  disease  and  prescribes  the  remedy 
he  deems  appropriate.  When  a  practitioner  makes  such  an  examina- 
tion of  his  patients  as  he  regards  sufficient  to  indicate  to  him  the  cause 
of  the  trouble,  and  to  indicate  its  proper  treatment,  he  has  diagnosed 
the  case.  Hence  a  practitioner  although  he  does  not  claim  to  treat  his 
patients,  but  merely  to  adjust  them,  is  practicing  medicine.  It  makes 
no  difference  that  the  practice  may  be  harmless,  or  that  cure  may  be 
seemingly  effected  thereby  if  such  practitioner  is  unlicensed.  Hence 
one  who  practices  what  he  calls  the  science  of  chiropractic  is  prac- 
ticing medicine  within  the  meaning  of  the  law.38 

Iowa,  1913. 

Persons  professing  to  be  chiropractors,  who  maintain  offices,  and 
who  hold  themselves  out  to  treat  and  do  actually  treat  patients  for 
disease  for  the  purpose  of  healing  them  are  practicing  medicine  within 
the  meaning  of  the  law.39 

Rhode  Island,  1913. 

A  chiropractor  who  professes  to  adjust  the  spinal  column  for  the 
purpose  of  removing  the  cause  of  a  person's  physical  disability  is 
guilty  under  the  ordinary  acceptation  and  the  popular  meaning  of  the 
term  "practice  of  medicine."  The  practice  of  medicine  does  not  wholly 
depend  on  the  administration  of  drugs.  It  is  a  matter  of  common 
knowledge  that  the  use  of  drugs  by  physicians  of  medicine  has  materi- 
ally decreased,  especially  during  the  last  twenty  or  more  years,  and  that 
not  infrequently  a  medical  practitioner  limits  his  efforts  to  effect  a 
cure  by  simply  regulating  the  diet,  advising  exercise  or  prescribing 
a  change  of  scene  or  climate.     Hence  a  practitioner  in  undertaking 


37.  State  v.  Johnson  (Kan.),  114  Pac.  390. 

See  also:    State  v.  Peters,  87  Kan.  265,  123  Pac.  751;  State  v.  Cotner,  87 
Kan.  864,  127  Pac.  1;  Green  v.  Hodges   (Kan.),  138  Pac.  605. 

38.  State  v.  Smith,  233  Mo.  242. 

39.  State  v.  Zechman  (Iowa),  138  N.  W.  387. 


109 

by  his  system  or  method  of  treatment  to  cure  or  alleviate  disease  or 
pain,  and  who  advertised  his  ability  to  so  treat  human  disease,  and  who 
has  been  compensated  for  giving  such  treatment,  was  practicing  medi- 
cine within  the  meaning  of  the  law.40 

CHIROPRACTIC    NOT    THE    PRACTICE   OF    MEDICINE 

Arkansas,  191 2. 

Under  a  statute  which  defines  the  practice  of  medicine  as  "pre- 
scribing or  directing  for  the  use  of  any  person  or  persons  any  drug 
or  medicine  or  other  agency  for  the  treatment  of  disease"  a  chiro- 
practor is  not  practicing  medicine  in  that  he  is  not  using  drugs  or 
medicine  within  the  meaning  of  the  act,  nor  does  his  system  come 
under  "other  agencies"  because  the  formal  rule  of  noscitur  a  sociis 
compels  the  meaning  of  the  general  term  "other  agency"  to  be  limited 
to  the  meaning  of  the  specific  terms  "drug  or  medicine"  preceding  it, 
and  can  only  include  agencies  of  the  like  nature  as  those  designated 
by  said  words.  This  rule  of  construction  does  not  deprive  the  term 
"other  agency"  so  used  of  all  meaning,  but  only  limits  its  meaning 
to  agencies  of  the  like  nature  and  quality  as  those  designated  by  the 
particular  words.  This  statute  was  not  intended  to  include  the  practice 
of  osteopathy,  which  chiropractors  more  nearly  resemble  than  it  does 
the  practice  of  medicine,  for  the  legislature  passed  an  act  regulating 
that  practice,  which  expressly  declared  that  it  is  not  included  within 
the  practice  of  medicine.  Hence  the  chiropractor  is  not  amenable  to 
the  law,  and  he  may  pursue  his  profession  without  complying  therewith 
to  the  extent  of  obtaining  a  license.41 

SUMMARY 

It  would  seem  almost  unnecessary  to  comment  on  the  somewhat 
anomalous  case  of  State  v.  Gallagher.  The  court  therein  was  con- 
strained to  follow  the  doctrine  of  nocitur  a  sociis,  which  has  been 
explained  in  Chapter  2.  Obviously,  the  chiropractor  is  as  much  within 
the  meaning  of  medical  practice  acts  in  general  as  is  the  osteopath  or 
the  Christian  Scientist.  A  fallacious  conception  of  the  words  drug 
or  medicine  cannot  be  invoked  to  except  him  from  the  intent  of  the 
legislature.  The  general  welfare  of  the  people  compels  such  interpre- 
tation of  these  laws  as  will  effectually  control  the  exercise  of  the 
medical  profession  and  limit  it  to  those  who  are  and  who  have  shown 
themselves  to  be  competent  to  treat  mental   and  physical   ailments. 


40.  Swarts  v.  Siveny  (R.  I.),  85  Atl.  33. 

41.  State  v.  Gallagher  (Ark.),  143  S.  W.  98. 

Ex  parte  Greenall,  153  Cal.,  767,  96  Pac.  804. 


110 

Chiropractors,  as  evidence  adduced  in  court  would  seem  to  show,  do  not 
as  a  general  rule  sufficiently  prepare  themselves  to  pose  as  persons 
able  and  fitted  to  practice  the  art  and  science  of  healing.  Members 
of  this  school  should,  therefore,  be  held  amenable  to  the  laws  and  if 
possessed  of  the  proper  qualificationns  should  be  licensed  and  per- 
mitted to  use  their  system.  Doubtless  such  a  scheme  would  soon 
develop  the  limitations  of  chiropractic  and  bring  about  its  gradual 
elimination.  Chiropractic  must  be  taken  as  the  practice  of  medicine 
to  conserve  the  public  health,  and  can  be  so  held  under  any  law  without 
express  language  to  the  contrary. 

S  49. — Magnetic  Healing 
Michigan,  1888. 

A  person  who  advertises  himself  as  a  doctor  and  magnetic  healer ; 
who  attempts  to  treat  the  sick  and  does  do  so,  and  who  signs  death 
certificates  and  the  like  is  practicing  medicine  within  the  meaning  of 
the  law.  Evidence  tending  to  prove  these  facts,  if  submitted  to  the 
jury  under  proper  instructions,  would  be  sufficient  whereon  to  find  a 
defendant  guilty.  Nor  would  there  be  any  error  in  letting  such  a 
case  go  to  the  jury.42 

Indiana,  1902. 

A  person  held  himself  out  as  a  magnetic  healer,  advertised  himself 
as  such  and  styled  himself  "Professor."  He  was  not  a  graduate  of 
any  school  of  medicine  and  had  no  license  to  practice  the  profession. 
He  diagnosed  his  cases  entirely  by  the  nerves,  and  in  the  treatment 
thereof  used  no  drugs  or  surgery.  His  system  of  working,  in  so  far 
as  there  was  anything  manual  about  it,  consisted  in  holding  the  affected 
parts  and  in  rubbing  them.  He  received  as  a  fee  $1.00  for  each 
of  such  treatments.  A  court  would  not  be  called  upon  to  determine 
whether  all  of  these  acts  might  properly  be  denominated  the  practice 
of  medicine.  Given  a  fairly  relevant  use  of  the  term  "practice  of 
medicine"  as  is  found  in  the  Indiana  law,  it  would  only  be  necessary 
to  determine  whether  such  a  practitioner  has  brought  himself  within 
such  statutory  definition.  Hence  under  the  Indiana  law  it  may  be 
concluded  that  a  person  so  practicing  was  engaged  in  the  practice  of 
medicine,  since  he  held  himself  out  as  a  magnetic  healer,  and  his 
method  was  at  least  in  part  a  method  that  medical  practitioners  some- 
times employ.43 


42.  People  v.  Phippen,  70  Mich.  6. 

43.  Parks  v.  State,  159  Ind.  211. 

Indiana  Medical  Practice  Act,  Sess.  L.  1897  as  amended  1905. 


Ill 

Iozva,  1905. 

Magnetic  treatment  is  the  practice  of  medicine  under  a  law  which 
makes  the  public  profession  of  an  ability  to  heal  evidentiary  of  a 
violation  of  a  law.  Hence  a  person  who  uses  that  system,  and  who 
advertises  his  ability  to  cure  a  variety  of  ailments,  all  without  a  cer- 
tificate from  the  State  Board  of  Health,  is  practicing  medicine  in 
violation  of  the  law.44 

Iowa,  1908. 

A  person  who  advertises  himself  as  a  magnetic  healer,  giving  treat- 
ments by  rubbing  and  kneading  the  body,  and  using  other  osteopathic 
manipulations,  is  practicing  medicine  and  is  liable  under  the  penalty 
if  he  has  failed  to  secure  a  certificate  by  law  prescribed.43 

§  50. — Suggestive  Therapeutics 
Indiana,  ipio. 

A  defendant  claimed  to  be  a  graduate  of  an  institute  of  suggestive 
therapeutics.  In  his  advertisements  he  appended  the  letters  "D.S.T." 
to  his  name.  The  evidence  showed  that  he  held  himself  out  and 
advertised  to  the  public  by  signs  in  his  office,  and  by  insertions  in 
local  newspapers,  that  he  was  a  doctor  and  that  he  was  capable  and 
competent  of  successfully  treating  all  forms  of  chronic  diseases.  He 
notified  all  persons  that  he  was  not  only  a  doctor  but  that  as  such 
he  was  a  specialist  in  the  treatment  of  chronic  diseases.  He  further 
advised  people  that  he  was  capable  of  curing  many  diseases  mentioned 
in  his  advertisements  without  administering  drugs  or  using  surgery, 
and  that  there  were  but  few  of  the  many  diseases  which  did  not  yield 
to  his  drugless  treatment.  Acts  of  this  nature  constitute  the  practice 
of  medicine  whether  or  no  drugs  are  administered  or  surgery 
employed.46 

New  York,  iqii. 

A  defendant  had  an  office  where  he  received  his  patients  and  gave 
them  treatments  for  their  physical  ailments.  He  received  compensa- 
tion for  such  treatments,  but  neither  prescribed  nor  administered  drugs, 
nor  did  he  use  any  surgical  operation.  His  treatment  consisted  only 
of  the  laying  on  of  hands  and  of  mental  suggestion.  He  advertised 
himself  as  a  Doctor  of  Suggestive  Therapeutics.  Such  facts  were 
deemed  sufficient  whereon  to  base  a  charge  of  practicing  medicine 


44.  State  v.  Heath,  195  Iowa  585. 

45.  People  v.  Trenner,  144  Iowa  275. 

State  v.  Miller,  138  Iowa  28,  115  N.  W.  493. 

46.  Witty  v.  State  (Ind.),  90  N.  E.  627. 


112 

without  a  license,  in  that  in  claiming  the  ability  to  treat  patients  for 
physical  ills  a  person  asserts  himself  to  be  one  with  special  training 
and  skill,  thereby  securing  his  patronage.  Inasmuch,  therefore,  as 
the  defendant  held  himself  out  to  the  public  as  one  capable  of  treat- 
ing and  curing  human  diseases,  together  with  the  facts  that  he  did 
usually  treat  patients  and  receive  pay  for  such  treatment,  he  was  guilty 
of  practicing  medicine  under  the  law  without  a  license.47 

§  51. — Mid  wives  and  Obstetricians 
Massachusetts,  18/8. 

In  a  suit  sounding  in  tort  and  brought  by  plaintiff's  next  friend 
against  defendant,  a  midwife,  for  negligently  delivering  said  plaintiff, 
thereby  causing  a  loss  of  sight,  it  was  held  that  defendant  was  not 
liable  in  the  premises.  This  was  on  the  ground  that  it  was  not  defen- 
dant's duty  as  a  midwife  to  treat  diseases  of  infants'  eyes  at  birth 
because  defendant  practiced  only  as  a  midwife.  Such  practice  does 
not  constitute  the  practice  of  medicine  under  the  law.  Defendant  had 
asserted  an  ability  to  effect  a  cure.  But  such  assertion  would  not  make 
her  chargeable  for  a  failure  to  use  that  special  degree  of  skill  and 
care  for  which  only  the  medical  profession  per  se  may  properly  be 
held  liable.  A  physician  must  apply  the  skill  and  learning  which  belong 
to  his  profession ;  but  a  midwife  who  without  special  qualifications 
volunteers  to  attend  the  sick  and  if  such  offer  is  accepted,  can  at  most 
be  required  only  to  exercise  that  skill  and  diligence  which  is  usually 
bestowed  by  persons  of  like  qualifications  under  like  circumstances. 
The  defendant  was  not  practicing  medicine  nor  was  she  assuming  to 
do  so,  and  hence  was  not  liable  for  the  alleged  negligence.48 

Illinois,  1895. 

From  the  evidence  adduced  it  appeared  that  defendant  held  her- 
self out  as  a  midwife  and  practiced  in  that  capacity.  Under  the  law, 
which  enacts  that  "no  person  shall  practice  medicine  and  surgery  in 
any  of  its  departments  in  this  state  without  the  qualifications  required 
by  this  act,"  it  would  seem  that  the  practice  of  midwifery  was  made 
an  important  department  of  medicine  and  surgery.  Argument  is 
apparently  quite  unnecessary  to  show  the  relative  value  of  obstetrics 
as  compared  with  other  branches  of  medicine  and  surgery.  Nor  yet 
would  it  seem  necessary  to  show  that  obstetricians  should  possess  a 
knowledge  and  skill  commensurate  with  the  importance  of  their  pro- 
fession and  sufficient  to  cope  with  the  dangers  and  accidents  frequently 


47.  People  v.  Mulford,  125  N.  Y.  Supp.  680. 

48.  Higgins  v.  McCabe,  126  Mass.  13. 


113 

confronting  such  practitioners.    Patently,  the  welfare  of  their  patients 
is  within  the  purview  of  a  medical  practice  act.40 

North  Carolina,  ipoi. 

The  practice  of  obstetrics  is  the  practice  of  medicine  and  surgery, 
and  practitioners  thereof  must  be  licenssed.  Obstetricians  do  not  fall 
within  the  exception  of  the  law  which  permits  women  to  practice  as 
midwives  without  taking  out  a  license,  since  as  a  rule  those  practi- 
tioners are  not  women  and  have  assumed  the  broader  responsibility 
of  the  profession  than  that  of  the  midwife.50 

Massachusetts,  1908. 

Both  medical  and  popular  lexicographers  defined  "midwife"  as  a 
"female  obstetrician,"  and  "midwifery"  as  the  practice  of  obstetrics. 
Many  of  the  medical  practice  acts  mention  obstetrics  as  one  of  the 
subjects  of  examination  for  the  purpose  of  testing  an  applicant's  fitness 
to  practice  medicine.  This  would  seem  to  go  far  toward  showing  that 
obstetrics  is  a  branch  of  medicine.  Nor  would  it  seem  to  require  dis- 
cussion to  demonstrate  that  when  in  addition  to  the  ordinary  assistance 
in  the  normal  cases  of  childbirth  a  midwife  who  makes  use  of  obstet- 
rical instruments,  and  who  under  certain  conditions  gives  her  patients 
printed  formulae,  which  are  in  fact  prescriptions  for  use  in  the  follow- 
ing circumstances:  vaginal  douche,  postpartum  hemorrhage,  after- 
pains,  uterine  inertia,  painful  hemorrhoids,  and  to  prevent  purulent 
ophthalmia  neonatorum,  is  practicing  medicine  in  one  of  its  branches. 
This  conclusion  may  be  reached  notwithstanding  the  fact  that  child- 
birth is  not  a  disease,  but  is  in  reality  a  normal  function  of  woman. 
For  the  practice  of  medicine  does  not  exclusively  appertain  to  disease, 
but  is  inclusive  of  obstetrics,  which  as  a  matter  of  common  knowledge 
has  long  been  treated  as  a  highly  important  branch  of  the  science  of 
medicine.51 

SUMMARY 

It  would  seem  that  the  difficulty  of  the  courts  in  their  several 
opinions  lies  in  their  failure  to.  recognize  the  surrounding  conditions 
to  the  practice  of  midwifery,  which,  as  a  result,  prevents  a  proper 
application  of  the  law.  This  may  readily  be  seen  in  the  McCabe  and 
Welch  cases  cited  ut  supra.  In  these  and  similar  cases  the  courts 
apparently  labor  at  what  is  to  them  the  Augean  task  of  recognizing 
the  facts  which  were  so  lucidly  explained  in  the  Porn  case  and  still 
take  into  consideration  the  numerous  difficulties  attendant  on  the  prac- 


49.  People  v.  Arendt,  60  111.  App.  89, 

50.  State  v.  Welch,  129  N.  C.  579,  40  S.  E.  120. 

51.  Comm.  v.  Porn,  196  Mass.  326,  82  N.  E.  31. 


114 

tice  of  obstetrics.  In  many  states  the  laws  at  one  time,  and  not  a  few 
so  enact  to-day,  that  women  acting  as  midwives  were  exempt  there- 
under. Such  laws  had  existence  in  great  part  because  of  a  lack  of 
knowledge.  To-day  with  the  advance  of  medical  science  has  come  a 
consequent  enactment  of  special  midwifery  laws  and  statutes  regulating 
ophthalmia  neonatorum.  Thus  surrounding  conditions  are  being  given 
greater  consideration  and  are  now  being  recognized  as  highly  impor- 
tant factors.  It  may,  therefore,  be  concluded  that  midwifery  and 
obstetrics  are  included  in  the  term  "practice  of  medicine,"  excepting, 
of  course,  under  those  special  and  highly  technical  laws  which  may 
be  found  in  any  given  jurisdiction. 

5  52. — Cancer  Cures 
Ohio,  1871. 

A  farmer  pretended  to  have  a  prescription  for  cancer  and  that  he 
had  special  skill  which  enabled  him  to  treat  and  cure  that  disease.  He 
was  employed  by  various  persons  so  afflicted  to  exercise  his  skill  and 
was  paid  therefor.  He  was  held  to  be  practicing  medicine  contrary  to 
the  law.52 

Kansas,  1907. 

A  farmer  manufactured  what  he  asserted  to  be  a  cancer  cure  from 
vegetables,  grown  on  his  own  farm.  He  had  used  the  remedy  on  a 
number  of  patients,  he  himself  making  the  application.  These  people 
were  treated  under  a  contract  which  called  for  a  payment  of  $50 
down  and  a  like  amount  upon  the  cure  being  effected.  He  was  held 
to  be  practicing  medicine  under  a  law  which  made  the  prescribing  of 
drugs  for  a  fee  prima  facie  evidence  of  a  violation  of  the  law.  It 
is  not  necessary  that  a  patient  himself  apply  the  drug  —  a  physician 
may  also  apply  it.  If  the  fee  is  paid  for  imparting  a  knowledge  of 
the  curative  powers  of  a  drug  and  not  simply  for  material  furnished 
or  as  compensation  for  the  application  thereof,  then  the  transaction 
amounts  to  recommending  medicine  for  a  fee  within  the  letter  and 
spirit  of  the  law.  Nor  would  a  defendant  in  such  a  case  be  exempted 
from  the  penalty  of  the  law  as  "administering  domestic  medicines"  for 
he  received  pay  for  his  services  and  the  remedy  was  not  one  which 
is  well  known  or  the  effect  of  which  is  a  matter  of  common  knowl- 
edge. The  theory  is  that  one  who  proposed  to  advise  as  to  the  use 
of  drugs  thereby  holds  himself  out  as  possessed  of  special  and  peculiar 
information  on  the  subject.  It  is,  therefore,  the  duty  of  the  state 
to  see  that  he  possesses  it  or  in  default  of  proof  thereof  to  prevent 


52.  Musser's  Executrix  v.  Chase,  29  Ohio  St.  577. 


115 

his  making  the  unfounded  claim  a  source  of  revenue.  Thus  a  person 
who  prescribed  a  remedy  for  a  cancer  for  a  fee  would  be  practicing 
medicine  whether  or  no  the  drug  prescribed  was  a  domestic  remedy." 

§  53. — Ophthalmology 
South  Dakota,  1903. 

A  person  who  proposes  to  be  an  opthalmologist  and  who  claims 

to  cure  eye  troubles,  hysteria,  female  diseases  and  various  nervous 

diseases  is  practicing  medicine  under  a  statute  which  forbids  the  use 

of  medical  titles  or  the  like  in  advertising  by  any  one  other  than  a 

person  with  the  legal  right  thereto,  and  who  is  duly  registered  under 

the  law.     Claiming  to  be  a  doctor  and  an  ophthalmologist  when  one 

is  a  graduate  of  no  medical  school  whatsoever  and  is  unlicensed,  is 

practicing  medicine  contrary  to  the  law.54 

Illinois,  1904. 

From  the  evidence  defendant  seemed  simply  to  fit  spectacles  to 
the  eyes  of  persons  of  defective  vision,  and  to  sell  them  to  such  per- 
sons. In  his  advertisements  he  stated  simply  that  glasses  fitted  and 
ground  by  his  method  benefited  and  had  cured  headaches,  blurring 
and  itching  of  the  eyes.  The  court  held  that  acts  of  this  nature  are  not 
practicing  medicine  under  the  Illinois  act  of  1899.  It  was  further 
urged  that  it  would  be  a  strained  construction  of  the  law  to  hold  that 
the  mere  fitting  of  spectacles  is  a  selling  of  "appliances  intended  for 
the  treatment  of  diseases  or  injuries  of  another."  It  was  recognized 
that  it  is  a  well-known  fact  that  headaches  and  the  like  are  a  result  of 
defective,  vision,  and  that  such  ills  may  be  relieved  by  the  use  of  glasses. 
But  it  was  said  that  it  could  not  be  contended  that  a  person  who  sells 
spectacles  or  who  fits  glasses  is  practicing  medicine  or  surgery  or  is 
professing  to  cure  or  treat  diseases  or  infirmities  thereby.55 

Tennessee,  1906. 

Defendant  claimed  he  was  an  optician  and  used  what  he  called  "a 
functional  ray  treatment."  In  order  to  diagnose  patients'  trouble  he 
made  microscopic  tests  of  their  blood  and  then  prescribed  his  method. 
The  patient  was  denuded  of  clothing  and  placed  in  a  closed  cabinet, 
wherein  the  body  was  subjected  to  the  rays  of  two  large  electric  arc 
lights  —  this  was  continued  for  about  thirty  minutes  or  until  the 
patient  was  in  a  profuse  perspiration  —  the  patient  was  then  taken 


53.  State  v.  Huff,  75  Kan.  585,  90  Pac.  279. 

54.  State  v.  Yegge,  19  S.  Dak.  234. 

55.  People  v.  Smith,  208  111.  31. 


116 

to  another  room  and  rubbed  off.  Local  applications  of  the  rays  were 
made  to  any  part  affected.  Besides  the  ray  treatment  the  defendant 
prescribed  medicines  of  various  kinds,  mostly  patent  or  proprietary 
remedies,  and  kept  an  account  at  a  drug  s1;ore.  He  made  a  uniform 
charge  of  $100,  which  was  claimed  to  be  for  the  light  treatment  alone. 
Neither  defendant's  peculiar  definition  of  optician  nor  his  system  of 
treatment  relieved  him  from  liability  under  the  law.  The  determina- 
tive factors  against  him  were  his  claim  to  be  a  physician  by  holding 
himself  out  as  a  practitioner  of  medicine  and  by  soliciting  patients  who 
were  afflicted  with  diseases  for  treatment  by  his  system.56 

Iowa,  1908. 

The  publication  of  a  card  bearing  the  inscription  "Doctor  of  Neu- 
rology and  Ophthalmology"  together  with  the  insertion  of  advertise- 
ments in  a  daily  paper  dilating  on  one's  ability  and  on  the  value  of  a 
practical  system  is  making  a  public  profession  that  one  is  a  physician 
and  a  practitioner  of  medicine.  Such  a  profession  together  with  the 
assumption  of  the  duties  of  a  medical  practitioner  by  advising  patients 
how  to  care  for  themselves  so  that  Nature  might  effect  a  cure  is 
practicing  medicine  within  the  meaning  of  the  law.  Merely  claiming 
to  discover  the  cause  and  letting  Nature  effect  the  cure  is  immaterial ; 
if  the  practitioner  has  no  certificate  his  acts  are  unlawful.  A  prepa- 
ration to  follow  the  medical  profession  by  a  mere  attendance  at  so-called 
medical  colleges  during  the  summer  months  only,  is  entirely  insufficient 
and  should  constitute  no  authority  to  practice  medicine  under  any  law. 
Practitioners  of  this  nature  savor  of  the  charlatan  and  impostor,  and 
can  form  no  bona  fide  basis  on  which  to  establish  a  right  to  practice 
medicine.57 

Missouri,  19 10. 

A  person  who  treats  diseases  of  the  eyes  is  practicing  medicine. 
It  may  be  that  simply  fitting  and  selling  eye  glasses  is  not  practicing 
medicine,  but  where  there  is  added  thereto  a  prescribing  of  ointments, 
salves  and  the  like,  together  with  the  facts  that  the  practitioner  charges 
and  received  pay  for  his  services,  has  an  office  and  advertises  himself 
as  a  doctor,  it  can  hardly  be  denied  that  this  is  the  practice  of  medicine. 
It  is  the  act  committed  and  not  the  designation  thereof  which  constitutes 
the  offense.  Hence  calling  one's  self  an  ophthalmologist  is  no  defense 
because  that  term  has  reference  simply  to  a  branch  of  medicine.58 


56.  O'Neil  v.  State,  115  Tenn.  427,  90  S.  W.  627. 

57.  State  v.  Wilhite,  132  Iowa  226. 

58.  State  v.  Blumenthal  (Mo.),  125  S.  W.  1188. 


117 

SUMMARY 

The  courts  in  dealing  with  those  who  fit  and  sell  spectacles  —  opti- 
cians, ophthalmologists  and  the  like  —  seem  to  have  the  same  diffi- 
culties as  when  dealing  with  other  so-called  or  alleged  specialists.  In 
an  apparent  endeavor  to  differentiate  these  callings  from  the  profession 
of  medicine  in  its  broadest  sense,  these  courts  have  "digged  for  them- 
selves a  pit"  into  which  they  and  their  logic  have  forthwith  fallen. 
For  example,  in  the  Illinois  case  of  People  v.  Smith,  nt  supra,  the 
court  at  one  place  says  that  a  mere  "fitter  of  spectacles"  is  not  to  be 
considered  under  the  language  "appliances  intended  for  the  treatment 
of  diseases  jot  injuries  of  another,"39  and  then  the  court  continues  "it 
is  a  well-known  fact  that  headaches  .  .  .  may  be  relieved  by  the 
use  of  glasses.  But  it  cannot  be  contended  that  one  who  sells  or  fits 
glasses  is  practicing  medicine     .     .     .  Glasses  relieve  headaches, 

to  say  nothing  of  defective  vision,  blurring,  which  may  be  indigestion, 
and  the  like,  and  yet  glasses  are  not  appliances  intended  for  the  treat- 
ment of  diseases,  and  one  who  fits  and  sells  spectacles  is  not  practicing 
medicine.  Doubtless  the  learned  court,  which  evolved  this  chef 
d'oeuvre  of  legal  lore  and  acumen,  can  defend  it  with  logic  equally 
marvelous.  That  is  not  to  be  controverted,  nor  is  it  necessary.  We 
need  simply  apply  the  maxim :  "the  facts  speak  for  themselves."  It 
can  therefore  safely  be  concluded  that  a  "fitter  of  spectacles"  is  hand- 
ling "appliances  intended  for  the  treatment  of  disease"  and  is  to  that 
extent  practicing  medicine.  So-called  optometrists  should  not  be  per- 
mitted to  sell  glasses  indiscriminately  when  the  true  casus  belli  is 
mayhap  a  tumor  or  a  paralysis  of  a  nerve  or  the  like.  Those  who 
append  the  terms  "optometrist,  optician,  oculist,  ophthalmologist"  and 
the  like  are  practicing  medicine  and  it  should  be  so  held. 

§  54. — Itinerant  Physicians  and  Vendors  of  Drugs  and 

Proprietary  Remedies 
Illinois,  1884. 

The  record  showed  that  defendant  was  engaged*  in  the  selling  of 
medicines  by  means  of  a  show  and  the  like,  and  that  the  board  had 
offered  evidence  tending  to  prove  that  defendant  had  professed  at 
these  gatherings  that  he  could  cure  rheumatism,  kidney  diseases  and 
the  like.  It  was  shown  in  evidence  that  defendant  circulated  certain 
advertisements  and  the  board  offered  to  read  said  circulars  into  evi- 
dence, but  permission  was  denied.     From  these  •  facts  and  others  it 


59.  People  v.  Smith,  208  111.  31. 

Illinois  Medical  Practice  Act,  Sess.  Law  1899,  Sees.  7  and  8. 


118 

would  seem  that  there  was  a  clear  case  for  the  jury  and  sufficient 
grounds  on  which  to  hold  defendant  as  an  itinerant  doctor  and  vendor 
of  drugs,  and  therein  as  a  violator  of  the  medical  practice  act,  or 
rather  that  portion  thereof  having  reference  more  particularly  to  itiner- 
ant physicians  and  vendors  of  drugs.60 

North  Carolina,  189 1. 

A  person  who  is  a  vendor  of  patent  medicines  and  who  in  addition 
thereto  diagnoses  diseases,  prescribing  various  proprietary  remedies 
therefor  in  accordance  with  what  the  trouble  may  seem  to  be,  is 
practicing  medicine.  The  avocation  of  vendor  of  patent  medicines 
cannot  be  used  to  shelter  one  who  is  in  reality  practicing  medicine. 
If  such  were  permitted  a  pretender  might  take  advantage  of  it  and 
evade  a  law  which  is  enacted  for  the  express  purpose  of  preventing 
quacks  from  masquerading  as  medical  men,  thereby  endangering  the 
general  health  and  safety  of  the  people.61 

Iowa,  1894. 

Any  person  being  an  itinerant  vendor  of  drugs,  who  travels  from 
county  to  county,  and  without  selling  or  offering  to  sell  any  drugs, 
makes  the  profession  of  being  able  to  cure  or  treat  diseases  in  any 
way,  and  by  any  means,  is  guilty  as  contemplated  by  the  act  of  the 
defense  of  "professing  to  treat  diseases  while  an  itinerant  vendor  of 
drugs  and  without  a  license."62 

Illinois,  ipoo. 

A  medical  company  entered  into  a  written  contract  with  one  "W" 
to  sell  and  distribute  its  remedies  by  itinerant  vending.  The  law 
required  all  itinerant  vendors  of  drugs  to  pay  a  fixed  fee  monthly.  The 
contract  thus  entered  into  made  the  medical  company  the  seller  of 
the  drugs  and  "W"  its  mere  agent.  The  company  under  the  law 
should  therefore  have  taken  out  the  license  and  paid  the  fee  as  all 
sales  otherwise  were  violations  of  the  law.  The  obvious  purpose  of 
such  a  law  is  to  prevent  the  public  being  harmed  and  defrauded  by 
the  itinerant  sales  of  injurious  drugs  and  nostrums.63 

Illinois,  1902. 

A  person  who  travels  about  the  country,  prescribing  a  certain 
medical  device,  claiming  it  could  cure  rheumatism  and  the  like,  and 
making  sales  of  said  device,  cannot  be  regarded  as  practicing  medicine. 


60.  People  v.  Blue  Mountain  Joe,  129  111.  370. 

61.  State  v.  Van  Doran,  109  N.  C.  864,  14  S.  E.  32. 

62.  State  v.  Blair,  92  Iowa  28. 

63.  Watkins  Medical  Co.  v.  Paul,  87  111.  App.  278. 


119 

For  this  is  no  attempt  "to  treat  physical  ailments."  It  is  simply 
offering  and  recommending  a  device  for  sale.  It  is  no  more  the 
practice  of  medicine  than  a  sale  of  an  atomizer  by  a  druggist  or  any 
gratuitous  advice  given  by  one  neighbor  to  another,  in  case  of  illness, 
would  be.04 

Iowa,  1905. 

Defendant,  a  non-resident  and  unlicensed,  assumed  the  duties  of 
and  publicly  professed  to  heal  and  to  cure  diseases  by  dieting  his 
patients  and  by  causing  them  to  take  certain  exercises  and  to  wear 
glasses  furnished  by  him.  In  pursuing  his  profession  he  traveled  from 
place  to  place  and  was  thereby  guilty  of  practicing  medicine  as  an 
itinerant  physician  without  the  required  license.05 

Arkansas,  19 12. 

A  law  provided  that  it  would  be  illegal  for  "any  itinerant  vendor  of 
any  drug,  nostrum,  ointment,  or  application  of  any  kind  intended  for 
the  treatment  of  diseases  or  injury,  or  who  may  by  writing,  print  or 
other  methods  profess  to  cure  or  treat  diseases  or  infirmities  by  any 
drug,  nostrum,  manipulation  or  other  expedient  to  practice  medicine 
without  a  certificate,  or  to  pursue  his  profession  without  said  certifi- 
cate." The  obvious  intention  of  this  act  it  would  seem  is  to  create 
two  offenses.  First,  the  selling  of  any  drug  for  the  treatment  of  any 
disease  without  a  license,  and  second,  advertising  the  willingness  to 
cure  or  treat  any  disease  by  means  of  any  such  drug  without  a  license. 
But  in  construing  the  section  the  act  as  a  whole  was  taken  into  con- 
sideration and  it  was  ruled  that  in  order  to  constitute  a  violation  of 
the  act  the  vendor  had  to  "practice  medicine,"  and  in  order  to  do  that, 
the  section  must  read  "sell  drugs  and  profess  to  cure  diseases  by 
advertising."  Under  this  construction  the  mere  sale  of  drugs  without 
a  license  would  not  be  unlawful  because  that  would  not  be  practicing 
medicine  within  the  meaning  of  the  statute.  For  there  was  required 
in  addition  to  the  "sale"  a  professing  to  cure  diseases  by  advertising.66 

SUMMARY 

In  the  construction  of  these  laws  the  courts  would  seem  to  miss 
the  true  object  of  their  enactment,  which  is  to  protect  the  public  from 
fraud  and  charlatanry.  If  this  be  kept  clearly  in  mind  there  would 
be  no  difficulty  as  was  found  in  the  Lehr  and  Williams  cases  cited 


64.  People  v.  Lehr,  196  111.  361. 

65.  State  v.  Edmunds,  127  la.  333. 

66.  Williams  v.  State  (Ark.),  137  S.  W.  927. 
Kirk  v.  State   (Term.),  ISO  S.  W.  83. 


120 

ut  supra.  In  the  Lehr  case  the  selling  of  a  device  for  rheumatism 
could  well  be  construed  the  practice  of  medicine.  However,  in  an 
opinion  to  the  contrary  no  little  blame  may  be  placed  on  the  wording 
of  the  statute.  Yet  the  courts  must  bear  their  share  in  failing  to 
interpret  even  a  poorly  worded  statute  with  a  liberal  mind  and  for 
the  best  interests  t>f  the  public.  It  is  well  recognized  that  itinerant 
physicians  and  vendors  of  drugs  are  objectionable,  and  that  they  are 
actuated  entirely  from  selfish  motives,  not  hesitating  to  sacrifice  any 
one  or  anything  for  their  own  ends.  For  these  reasons  an  itinerant 
is  not  comparable  to  a  druggist  selling  an  atomizer  or  to  a  neighbor 
advising  a  domestic  remedy  in  case  of  a  cold.  And  again  a  statute 
may  very  well  constitute  two  acts  as  offenses ;  selling  drugs  and  pro- 
fessing to  cure  diseases  with  the  said  drugs  by  advertising.  On  grounds 
of  public  policy  these  laws  must  be  met  with  a  fair  and  open  mind  and 
not  construed  so  as  by  means  of  verbal  quibbling  to  create  technical 
defenses  to  the  ultimate  sacrifice  of  the  public  welfare.  All  states 
do  not  constitute  the  itinerant  vending  of  drugs  the  practice  of  medi- 
cine, nor  is  it  necessary.  This  business,  however,  should  be  regulated 
and  can  be  controlled  just  as  well  from  this  point  of  view  as  any  other. 
Generally,  the  vendor  of  drugs  pretends  to  have  an  ability  to  diagnose, 
and  of  course  claims  his  remedy  for  a  specific.  What  more  sensible 
course  could  there  be  than  to  constitute  this  practicing  medicine,  and 
even  to  require  these  vendors  to  submit  to  an  examination  as  to  their 
qualifications.  At  least  if  this  were  done  courts  could  not  miss  the 
obvious  point  that  the  legislature  was  attempting  to  eliminate  certain 
undesirables  who  cannot  possibly  qualify  as  able  to  treat  physical  and 
mental  ailments. 

§  55. — Treatment  Given  Under  the  Direction  of  a  Legally 

Registered  Physician 
Nebraska,  1898. 

The  defendant,  an  unregistered  physician,  and  another  assisted  a 
duly  registered  physician  in  his  operations  and  divided  the  remunera- 
tion equally.  The  defendant  further  administered  remedies  under  the 
direction  of  the  registered  physician  and  also  in  his  absence.  In 
performing  the  services  usually  rendered  by  a  physician  and  in  accept- 
ing remuneration  therefor  defendant  was  practicing  medicine  under 
the  law.  It  was  immaterial  that  he  was  seemingly  acting  as  assistant 
to  the  registered  physician  inasmuch  as  in  reality  he  was  acting  inde- 
pendently in  that  all  fees  were  divided  equally.67 


67.  State  v.  Paul,  56  Neb.  369,  76  N.  W.  861. 


121 

Illinois,  1899. 

A  defendant  who  advertised  his  system  of  healing,  and  who  treated 
patients  by  rubbing  the  parts  affected,  claimed  to  be  acting  under  the 
direction  of  a  licensed  physician,  defendant  himself  being  unlicensed. 
The  trial  court  instructed  the  jury  that  although  the  treatment  may 
have  been  requested  and  directed  by  the  regular  attending  physician 
of  the  person  treated,  still  defendant  is  actually  administering  the 
treatment  and  in  being  unlicensed  would  be  practicing  medicine  illegally. 
Such  an  instruction  as  a  general  principle  of  law  is  wrong  and  vicious. 
But  since  no  competent  evidence  was  adduced  to  substantiate  the  alle- 
gation of  practicing  under  the  direction  of  a  physician  the  instruction 
could  do  no  harm  and  the  verdict  of  guilty  should  be  allowed  to  stand.08 

Arkansas,  1900. 

Defendant,  a  student  in  a  licensed  dentist's  office  performed  dental 
operations  for  various  patients  for  which  he  charged  and  received  pay 
personally.  Being  but  a  student  defendant  was  unlicensed.  The  law 
forbade  any  one  to  practice  dentistry  without  first  being  licensed.  From 
which  provision  persons  doing  work  gratuitously  were  excepted.  Hence 
defendant  although  he  was  ostensibly  but  a  student  working  under  a 
licensed  dentist  was  nevertheless  by  his  acts  practicing  dentistry  in 
violation  of  the  law.69 

District  of  Columbia,  1904. 

Defendant  proclaimed  himself  an  expert  in  the  treatment  of  alco- 
holism, therein  professing  a  knowledge  of  the  science  of  medicine  for 
the  purpose  of  obtaining  patients  to  take  his  treatment.  Defendant 
would  diagnose  the  case  of  any  patient  coming  to  him  and  prescribe 
his  remedy.  All  patients  would  be  placed  under  the  immediate  super- 
vision of  licensed  physicians  who  were  employed  by  defendant  to 
administer  his  remedy,  and  prescribed  for  their  general  welfare. 
Defendant  in  selling  his  compound  to  patients  whom  he  decided  to  be 
in  need  thereof,  was  practicing  medicine  just  as  much  as  if  he  had 
given  them  an  actual  prescription  that  could  be  filled  at  any  ordinary 
drug  store.  Employing  regular  physicians  to  administer  the  remedy  — 
to  determine  the  amounts  and  hours  of  dosage  —  would  not  relieve 
defendant  of  liability.70 


68.  W.  D.  Jones  v.  People,  84  111.  App.  453. 

Illinois  Medical  Practice  Act,  Sess.  Law  1887,  Sec.  10. 

69.  State  v.  Reed,  68  Ark.  331,  58  S.  W.  40. 

70.  Springer  v.  D.  C,  23  App.  D.  C.  59. 


122 

Oklahoma,  1913. 

A  person  who  does  not  possess  a  valid  unrevoked  certificate  from 
the  State  Board  of  Medical  Examiners  is  not  entitled  to  practice  medi- 
cine under  the  law  of  Oklahoma,  excepting  in  emergencies  and  such 
other  cases  as  are  specifically  exempted  by  the  statute.  This  is  the 
truth  even  though  a  person  works  with  or  under  the  direction  of  a 
duly  authorized  practitioner,  and  it  is  immaterial  whether  he  works 
for  a  fee,  a  percentage  or  on  a  salary.  The  Oklahoma  act  does  not 
any  more  contemplate  or  authorize  a  registered  physician  going  out  and 
employing  all  the  unauthorized  quacks  in  the  country  to  aid  and  assist 
him  for  a  compensation  or  otherwise,  except  in  emergencies,  in  the 
practice  of  medicine,  than  it  does  the  employment  for  the  same  purpose 
of  the  section  hands  on  a  railroad.  The  law  is  not  only  intended  to 
protect  legitimate  practitioners,  but  also  to  protect  the  public  against 
being  imposed  on  by  an  incompetent  person  holding  himself  out  as 
a  physician.  A  person  so  practicing  under  a  licensed  physician,  if 
unlicensed,  would  be  guilty  of  a  violation  of  the  medical  practice  act, 
and  the  physician  employing  him,  if  cognizant  of  the  facts,  would  be 
guilty  under  the  criminal  law  as  an  aider  and  abetter.71 

SUMMARY 

It  would  seem  the  consensus  of  opinion  that  practicing  or  attempting 
to  practice  when  unlicensed,  even  though  it  be  under  the  direction  of 
a  licensed  physician,  is  objectionable  under  the  law.  The  Jones 
case,  which  apparently  dissents  from  this  view,  in  that  the  appellate 
court  objected  to  the  broad  instruction  of  the  trial  judge,  may  even, 
it  is  submitted,  be  reconciled.  The  instruction  made  the  administra- 
tion of  the  remedy  the  objectionable  point  under  the  statute,  but 
patently,  this  would  not  be  so,  for  if  defendant  gave  his  massage 
treatment  at  the  direction  of  a  licensed  physician,  it  would  be  directly 
comparable  to  a  druggist  filling  the  prescription  of  some  physician  and 
charging  therefor.  If  this  were  all  defendant  had  done  he  would  not 
be  violating  the  law,  because  he  would  not  be  assuming  to  treat  as 
a  physician,  but  simply  and  only  at  the  direction  of  a  registered  physi- 
cian. In  the  other  case  the  defendants  had  not  only  held  themselves 
out  as  physicians  while  assuming  simply  to  act  as  duly  licensed  physi- 
cians, but  they  had  actually  treated  cases  and  charged  therefor  as  if 
they  too  were  duly  licensed  under  the  law.  As  has  been  repeatedly 
said,  it  is  this  deception  which  the  law  attempts  to  prevent,  together 
with  the  charlatanry  which  is  bound  to  result  therefrom. 


71.  Gobin  v.  State  (Okla.),  131  Pac.  546. 


123 

§  56. — Prescribing  and  Administering  Remedies  for  a 
Compensation  and  the  Like 
New  Mexico,  1905. 

A  drugless  healer  in  opening  an  office  for  business  and  in  adver- 
tising as  a  person  able  and  willing  to  treat  and  cure  disease  and  the 
like,  and  in  accepting  pay  for  his  treatments  and  prescriptions,  would 
be  practicing  medicine  under  a  statute  forbidding  such  act,  unless  the 
practitioner  be  licensed  in  due  form  under  the  law.72 

Missouri,  1906. 

A  person  holding  himself  out  as  a  physician,  receiving  and  exam- 
ining patients,  advising  and  prescribing  for  them,  and  accepting  pay 
for  such  services  is  practicing  medicine.73 

New  Mexico,  1908. 

Defendant  opened  an  office  and  announced  to  the  public  his  willing- 
ness to  treat  consumptives  with  a  patent  medicine  purporting  to  be  a 
specific  for  that  disease.  He  was  to  that  extent  practicing  medicine 
under  the  law.  When  a  law  provides  that  a  treatment  must  be  for 
pay,  or  that  a  receipt  of  compensation  constitutes  the  practice  of  medi- 
cine, then  it  is  necessary  that  there  be  some  person  actually  treated, 
but  under  the  provisions  as  to  advertising  and  opening  an  office  no 
treatment  is  necessary.  The  mere  acts  of  advertising  and  opening  an 
office  constitute  the  overt  act,  while  under  the  other  section  it  is  the 
treatment  of  a  patient  for  pay,  which  is  forbidden  if  the  practitioner 
be  unlicensed.74 

§  57. — Corporations 
Nebraska,  1905. 

A  corporation,  while  in  some  sense  a  person  and  for  many  pur- 
poses so  considered,  is  not  however  such  a  person  as  can  be  licensed 
to  practice  medicine.  It  is  impossible  to  conceive  of  an  impersonal 
entity  judging  the  nature,  character  and  symptoms  of  a  disease  or 
determining  the  proper  remedy  or  giving  or  prescribing  the  applica- 
tion of  the  remedy  to  the  disease.  Members  of,  or  persons  employed 
by  a  corporation  might  do  these  things,  but  a  corporation  itself  is 
incapable  of  doing  them.  The  law  contemplates  that  one  who  under- 
takes to  judge  the  nature  of  a  disease  or  to  determine  the  proper  remedy 
therefor,  or  to  apply  the  remedy,  must  have  certain  professional  quali- 
fications.   But  a  corporation  which  merely  advertises  to  and  does  prac- 

72.  Territory  v.  Newman,  79  Pac.  706. 

73.  State  v.  Davis,  194  Mo.  485,  92  S.  W.  484,  4  L.  R.  A.  (N.  S.)   1023. 

74.  Territory  v.  Lotspeich  (N.  Mex.),  94  Pac.  1095. 


124 

tice  medicine  through  its  officers  and  agents  who  are  legally  licensed 
physicians  does  not  in  itself  need  these  qualifications,  and  of  course 
cannot  have  them.  Hence  the  making  of  contracts  to  cure  disease  and 
the  collecting  of  compensation  therefor  is  not  practicing  medicine 
within  the  meaning  of  the  law,  nor  is  there  therein  any  attempt 
so  to  do.75 
Ohio,  1906. 

A  corporation  issued  and  sold  contracts  to  physicians  whereunder 
it  was  bound  to  retain  counsel  and  defend  said  physician  in  any 
malpractice  suit  that  might  be  brought  against  him.  The  corporation 
did  not  agree  to  pay  for  any  judgment  rendered  against  any  physician, 
and  hence  was  not  in  an  insurance  business  but  was  engaged  in  a 
professional  business  contrary  to  the  law.  In  undertaking  to  act  as 
agent  of  the  obligee  in  retaining  legal  counsel  and  in  managing  and 
maintaining  the  defense  of  the  suit,  the  corporation  was  engaged  in 
a  professional  business.  And  this  even  though  the  corporation  is  an 
impersonal  entity  which  as  such  cannot  engage  in  the  practice  of  law 
and  the  defense  of  suits  per  se.76 

New  York,  1908. 

A  corporation  which  advertises  to  practice  medicine  is  undertaking 
to  practice  medicine  just  as  much  as  an  ordinary  person  would  be. 
That  the  corporation  would  have  to  practice  through  its  officers  and 
agents  is  immaterial.  Any  corporation  in  the  consummation  of  any 
act  as  a  corporation  must  act  through  officers  and  agents.  Nor  is  the 
fact  that  a  corporation  is  physically  incapable  of  taking  out  a  license 
any  objection.  For  notwithstanding  that  fact  it  can  advertise,  and 
advertising  is  forbidden  to  any  but  a  licensed  physician.  Hence  in 
so  doing  a  corporation  is  practicing  medicine  contrary  to  the  law.77 

A  contract  to  perform  medical  or  surgical  services  by  a  corpora- 
tion organized  for  the  purpose  of  constructing,  owning  and  operating 
a  street  railway  is  not  only  ultra  vires,  but  is  in  direct  conflict  with 
the  medical  practice  act,  and  therefore  void.78 

SUMMARY 

On  grounds  of  public  policy,  if  not  under  the  statutory  laws,  cor- 
porations can  be  held  to  be  acting  illegally  in  attempting  to  practice 
medicine  or  in  advertising  to  practice  medicine  through  agents.    The 


75.  Institute  v.  State,  74  Neb.  40,  103  N.  W.  1078. 

76.  State  v.  Laylin,  73  Ohio  St.  90. 

77.  People  v.  Institute,  192  N.  Y.  454,  85  N.  E.  697. 

78.  R.  R.  v.  Kessler  (Ohio),  36  L.  R.  A.  (N.  S.)  50. 
In  re  Cooperative  Law  Co.  (N.  Y.),  92  N.  E.  15. 


125 

Nebraska  case  is  to  be  distinguished  from  the  New  York  and  Ohio 

cases  in  that  the  law  in  the  former  case  did  not  forbid  advertising  in 

itself  and  in  that  the  practice  of  medicine  as  defined  by  statute  differed 

as  a  consequence.    It  would  seem  that  the  Nebraska  court  would  have 

held  the  same  view  as  the  New  York  court  did  had  the  case  before  the 

court  arisen  under  a  similar  law.    Undoubtedly,  on  grounds  of  public 

policy,  it  would  have  been  a  common  sense  decision  to  have  held  the 

corporation  to  have  been  acting  illegally.    The  medical  profession  is  a 

thing  too  vital  to  be  emmeshed  in  the  legal  fictions  of  the  so-called 

corporate  entity.    Hence  it  is  that  a  corporation  should  at  least  be  held 

guilty  of  the  attempt  to  practice  medicine  even  if  it  be  a  physical 

impossibility    for   the    corporate   entity   as   such    to   actually   practice 

medicine. 

§  58. — Clairvoyant,  Magic  Healers 
Maine,  187 1. 

A  person  who  pretends  to  be  a  clairvoyant  and  who  visits  her 
patients  for  the  purpose  of  treating  them  by  her  system,  and  who 
after  a  fashion  diagnoses  a  disease  and  prescribes  therefor,  is  prac- 
ticing medicine.  It  is  immaterial  that  such  a  person  denies  that  she  is 
practicing  medicine  and  disclaims  any  use  of  drugs  and  the  like.  Such 
disclaimers  and  denials  cannot  controvert  the  charge  of  practicing 
medicine  as  evidenced  by  attempting  diagnoses,  prescribing  for  and 
treating  patients.79 

Delaware,  1904. 

A  defendant  pretended  that  certain  people  were  possessed  of  evil 
spirits  and  that  their  sickness  was  caused  by  the  presence  of  this  spirit 
and  that  defendant  alone  was  possessed  of  the  power  to  remove  such 
spirits,  and  thus  to  heal  the  disease  or  cure  the  sickness.  Defendant 
was  indicted  and  convicted  under  a  statute  enacted  against  pretending 
to  exercise  the  art  of  witchcraft  and  the  like.80 

Georgia,  1908. 

Plaintiff  had  been  charged  with,  practicing  medicine  without  a 
license,  and  after  a  preliminary  hearing  the  case  had  been  dismissed. 
He  then  brought  this  suit  for  malicious  prosecution  and  false  imprison- 
ment. The  pleadings  therein  raised  the  issue  as  to  whether  or  no 
following  the  profession  of  a  magic  healer  is  practicing  medicine. 
Under  this  system  no  drugs  were  administered,  nor  were  surgical 
instruments  employed.    The  method  consisted  simply  in  laying  hands 

79.  Bibber  v.*Simpson,  59  Me.  181. 

80.  State  v.  Durham  (Del.),  5  Penn.  105,  58  Atl.  1024. 


126 

on  the  sick  at  the  point  or  place  of  pain  or  disease,  and  the  healing 
which  followed  was  by  direct  divine  agency  only.  The  plaintiff 
received  no  pay  for  his  treatment  but  did  accept  gratuities.  Plaintiff 
was  held  to  be  not  practicing  medicine  by  the  application  of  the  doc- 
trine noscitur  a  sociis  to  the  term  "other  agency,"  and  by  disregard- 
ing the  words  "material  or  not  material."  Magic  healing  is  a  branch 
of  mental  therapeutics  or  psychic  phenomena,  and  receiving  pay  cannot 
make  it  the  practice  of  medicine.81 

SUMMARY 

Possibly  attempting  to  hold  some  of  these  healers  as  practitioners 
of  medicine  does  test  the  tenuosity  of  the  law  in  no  little  degree. 
However,  it  may  be  said  to  be  simply  a  question  of  policy.  Such  prac- 
titioners are,  with  scarcely  an  exception,  nothing  but  impostors  and 
charlatans.  Hence  the  issue  is  whether  to  indict  them  for  some  one 
of  the  usual  misdemeanors  or  felonies,  or  to  bring  them  under  a 
medical  practice  act.  The  Delaware  case  is  an  example  of  the  former, 
and  the  court  in  the  Georgia  case  expressed  themselves  obiter  as 
being  favorable  to  such  a  policy.  Conceding  this  issue  as  a  matter  of 
policy  does  not  answer,  however,  such  expressions  as  that  a  legisla- 
ture cannot  make  the  receipt  of  money  for  a  treatment  evidence  of 
a  violation  of  the  law,  and  thus  render  those  who  treat  sickness  for 
pay  practitioners  of  medicine  under  the  law.  There  is  no  question 
but  that  this  can  be  done.82 

It  is  not  to  be  apprehended  that  courts,  so  questioning  the  power 
of  a  legislature,  would  have  any  difficulty  in  recognizing  the  legal 
fiction,  a  corporation,  as  a  personal  entity.  Why  then  should  these 
courts  "unravel  the  knitted  sleeve  of  care"  in  their  endeavor  to  pro- 
nounce "treating  the  sick  for  pay  not  the  practice  of  medicine  ?"83 

It  is  submitted  that  a  court  in  so  holding  would  seem  to  lay  its  opin- 
ion open  to  one  of  two  charges.  Either  ignorance  or  undue  partiality. 
Hence  while  these  violators  of  law  and  good  morals  may  as  a  matter 
of  policy  be  indicted  and  punished  for  the  ordinary  criminal  offenses 
of  fraud  and  deceit,  yet  they  too  may  very  well  be  brought  under  a 
medical  practice  act,  for  this  also  is  "the  law  of  the  land"  and  is 
intended  for  the  general  welfare  of  the  people,  just  as  much  as  the 
criminal  law  which  has  been  created  out  of  the  old  common  law. 


81.  Bennett  v.  Ware,  4  Ga.  App.  293. 

82.  Ut  supra,  Ch.  1,  Sees.  4,  5. 
Ut  supra,  Ch.  2,  Sees.  25,  32. 

83.  Bennett  v.  Ware,  4  Ga.  App.  293. 

State  v.  Biggs,  133  N.  C.  729,  46  S.  E.  401,  64  L.  R.  A.  139,  98  Am.  State 
Rep.  731. 


127 

§  59. — Miscellaneous 

mechano  neural  therapy 
New  York,  190J. 

Defendant  advertised  as  a  doctor  and  maintained  an  office  where 
he  received  his  patients.  He  also  visited  patients  at  their  homes.  He 
diagnosed  their  troubles  and  would  advise  various  diets  therefor.  He 
also  professed  to  treat  their  nerves  by  pressing  and  kneading  different 
portions  of  the  body.  He  had  a  regular  charge  for  all  such  services. 
He  claimed  the  ability  to  cure  all  diseases  and  denied  the  use  of  any 
drugs  therein.  He  asserted  himself  to  be  a  mechano  neural  therapist 
and  hence  was  practicing  medicine.  The  opinion  as  herein  expressed 
may  be  said  to  have  the  support  of  the  general  current  of  authorities 
throughout  the  country  and  further  an  examination  of  the  history  and 
growth  of  statutory  enactments  along  this  line  but  serves  to  strengthen 
the  view.  It  would  seem  that  the  rule  as  claimed  to  have  been  laid 
down  in  Smith«v.  Lane  should  not  here  apply.8* 

VITAL   HEALING 

Iowa,  ipio. 

Defendant  attended  a  school  of  psychic-sarcology  for  three  years. 
He  then  advertised  his  system  in  the  daily  papers  and  claimed  that 
he  treated  and  cured  people.  He  had  an  office  where  he  received 
visits  from  his  patients  and  gave  treatment.  This  consisted  in  a 
manipulation  of  the  nerves,  on  the  theory  that  the  affected  parts  would 
thereby  be  made  normal.  These  acts  constituted  an  attempt  to  heal 
and  cure  the  afflicted  and  hence  defendant  by  his  system  of  vital  healing 
was  practicing  medicine.85 

PRESCRIBING   "TISSUE  FOODS" 

Iowa,  1908. 

The  evidence  showed  that  defendant  maintained  an  office  where 
she  kept  and  sold  to  her  patients  a  preparation  known  as  "tissue  foods." 
It  was  further  shown  that  defendant  pretended  to  diagnose  and  thereon 
to  prescribe  the  proper  remedy.  There  was  a  conflict  of  testimony 
as  to  whether  a  food  was  sold  as  a  medicine  or  as  an  article  of  diet. 
The  only  question  here  was,  did  defendant  during  the  time  covered 
by  the  indictment  make  a  practice  of  prescribing  and  furnishing  medi- 
cine for  the  sick,  which  under  the  law  would  constitute  the  practice 
of  medicine.  The  acts  as  set  forth  were  taken  as  sufficient  to  bring 
defendant  within  the  terms  of  the  statute  and  hence  whether  or  no 


84.  People  v.  Allcutt,  117  App.  Div.  546. 

85.  State  v.  Adkins   (Iowa),  124  N.  W.  627. 


128 

the  food  was  an  article  of  diet  or  a  remedy  in  the  nature  of  a  drug 
or  the  like  defendant  was  practicing  medicine  in  diagnosing  cases 
and  prescribing  said  food  for  her  patients.86 

DERMATOLOGY 

Rhode  Island,  ipo/. 

Defendant  testified  that  he  was  not  "a  medical  doctor"  and  that  he 
had  never  attended  a  school  or  took  any  course  of  study  in  medicine. 
He  claimed,  however,  to  be  "a  doctor  of  dermatology  and  physical 
education"  by  virtue  of  a  degree  from  an  institute  formed  by  himself 
and  others,  to  which  he  added  the  title  of  "nerve  specialist"  by  some 
authority  not  disclosed.  Defendant  advertised  as  a  doctor  and  claimed 
the  ability  to  cure  all  diseases.  He  sold  a  "nerve  food"  which  he  had 
concocted  and  his  charge  was,  he  claimed,  for  this  food  and  other 
services  rendered.  The  sale  of  this  remedial  substance,  together  with 
the  various  claims  advanced  by  defendant  would  constitute  him  a 
practitioner  of  medicine  under  the  law.87 

BONE-SETTING    SURGERY 

Massachusetts ,  1835. 

A  person  who  professes  and  practices  bone-setting  and  reducing 
sprains,  swellings  and  contractions  of  the  sinews  by  friction  and 
fomentation  is  practicing  medicine.  It  is  not  necessary  for  one  to 
profess  to  practice  generally  either  as  a  physician  or  surgeon  to  bring 
one  within  the  operation  of  the  statute,  for  the  law  extends  to  any 
one  engaging  in  practicing  a  distinct  department  such  as  surgery.88 

The  term  "practice  of  medicine"  embraces  the  art  of  preventing 
and  curing  or  alleviating  disease  and  remedying  as  far  as  possible  the 
results  of  violence  and  accidents.  A  surgeon,  therefore,  is  a  practi- 
tioner of  medicine  in  the  broad  sense  of  that  term.89 

MEDICAL   TITLES 

New  York,  1907. 

Under  any  act  forbidding  the  use  of  such  titles  as  "D.R.,"  "M.D." 
and  the  like  in  such  a  manner  as  to  convey  the  impression  that  the 
person  appending  such  a  title  to  his  name  is  legally  entitled  thereto, 
the  persons  so  using  the  titles  if  other  acts  such  as  diagnosing  and 
treating  disease  were  likewise  adduced  in  evidence,  would  be  con- 
sidered as  practicing  medicine.90 


86.  State  v.  Bresee,  137  Iowa  673. 

87.  State  v.  Heffernan,  28  R.  I.  20,  65  Atl.  284. 

88.  Hewitt  v.  Charier,  16  Pick.  353    (Mass.). 

89.  Stewart  v.  Raab,  55  Minn.  20. 

90.  People  v.  Somme,  120  App.  Div.  20,  104  N.  Y.  Supp.  946. 


129 

Tr       ,  ADVERTISING 

Nczv  York,  ipn. 

The  fact  that  a  person  sent  out  letters  from  a  "department  of 
glanderine"  offering  to  cure  persons  of  glanders,  together  with  the 
fact  that  the  person  visited  the  patients,  leaving  his  remedy,  with  direc- 
tions for  its  use,  and  that  he  termed  himself  to  be  called  "doctor"  may 
be  taken  as  sufficient  facts  on  which  to  base  a  charge  of  the  practice 
of  medicine.91 

r,  n  FURNISHING  MEDICINE 

Kansas,  logo. 

A  physician  who  was  unlicensed  brought  an  action  to  recover  for 
medicine  furnished,  claiming  that  he  was  making  no  charges  for  ser- 
vices. It  was  held  that  the  physician  could  not  recover  inasmuch  as 
furnishing  medicine  was  the  practice  thereof.  As  plaintiff  was 
unlicensed  this  would  be  permitting  a  violation  of  the  law  and  would 
render  the  statute  nugatory.  Consequently  no  recovery  could  be 
allowed,  for  even  the  mere  furnishing  of  remedies  in  such  a  case  has 
to  so  hold  or  defeat  the  plain  object  of  the  law.92 

TU.      .  0  NURSING 

Illinois,  i poo. 

Plaintiff  contracted  to  personally  care  for  and  nurse  one  "N"  for 
and  during  the  term  of  his  natural  life.  An  agreement  to  nurse  an 
adult  gives  the  idea  that  the  adult  is  sick  and  that  care  and  comfort 
will  be  required  to  hasten  a  recovery.  This,  however,  would  not  con- 
stitute the  practice  of  medicine,  as  a  physician  in  having  his  services 
contracted  for  agrees  to  bring  much  more  than  the  mere  nurse  under 
a  similar  contract,  for  the  physician  besides  ordinary  care  must  employ 
such  skill  and  scientific  knowledge  in  his  treatment  of  disease  as  is 
commensurate  with  the  given  case  in  hand.93 

n    t_c         ■  00/  ACTING  IN  AN  EMERGENCY 

California,  iooo. 

A  person  who  renders  gratutitious  service  in  an  emergency  is  not 
practicing  medicine  but  performing  an  act  of  charity  and  common 
decency,  and  is  therefore  excepted  under  all  medical  practice  acts. 
But  a  person  who,  claiming  to  be  a  physician,  is  called  simply  because 
a  patient  prefers  him,  or  his  school  of  medicine,  does  not  fall  within 
the  exception  and  is  practicing  medicine  as  that  term  is  ordinarily 
understood.94 


91.  Schmidt  v.  Medical  Society,  127  N.  Y.  Supp.  365. 

92.  Underwood  v.  Scott,  43  Kan.  714,  23  Pac.  942. 

93.  Oswald  v.  Nehls,  233  111.  438. 

94.  People  v.  Lee  Wall,  71  Cal.  80,  11  Pac.  857. 


130 

§  60. — General  Summary 

In  determining  whether  or  no  the  practitioners  of  a  given  sect  or 
school  of  medicine  are  practicing  medicine  within  the  meaning  of  the 
law  it  would  seem  that  those  courts  which  hold  in  the  negative  are 
actuated  most  strongly  by  three  factors.  First,  by  the  fact  that  they 
believe  the  religious  and  mental  freedom  of  man  is  being  unnecessarily 
interfered  with ;  second,  that  no  school  of  medicine  has  reached  scien- 
tific perfection;  and  third,  that  to  decide  against  the  various  schools 
is  to  create  a  monopoly  for  the  so-called  regulars.  In  answer  to  these 
objections,  and  taking  them  in  order,  it  may  be  replied  simply  that  the 
religious  freedom  of  no  man  or  group  of  men  can  be  weighed  in  the 
balance  over  and  against  the  health  and  safety  of  the  state;  nor  can 
the  opinions  of  a  mere  man  or  group  of  men  be  deemed  as  of  para- 
mount importance  in  the  face  of  the  needs  of  the  masses.  That  medi- 
cine as  a  science  is  still  imperfect  is  well  recognized,  and  for  that 
very  reason  no  law  attempts  to  prevent  the  use  of  any  system.  The 
most  that  is  attempted  is  to  require  all  physicians  to  have  the  same 
preparation  and  to  undergo  the  same  tests.  Then  all  having  started 
alike  it  is  left  to  each  school  to  prove  its  own  worth.  To  hold  that 
the  practice  of  some  particular  sect  is  practicing  medicine  does  not 
create  a  monopoly.  It  is  simply  pointing  out  to  such  practitioner  that 
he  must  qualify  himself  under  the  law,  having  qualified  himself  he 
will  then  be  permitted  to  make  use  of  his  system.  If  he  work  any 
injury  therein  he  will  be  liable  in  an  action  sounding  in  tort,  if  it 
be  a  private  wrong,  and  he  will  render  himself  liable  in  a  criminal 
prosecution  for  a  public  wrong. 

The  courts  would  seem  to  lose  sight  of  the  great  sociological  and 
economical  factors  which  actuate  legislation  of  this  nature.  These 
laws,  as  has  been  so  frequently  stated,  are  in  the  interests  of  the 
masses.  It  is  to  protect  them  from  injury  that  such  laws  are  passed. 
It  may  be  said  the  people  need  no  such  protection,  that  they  have  a 
right  of  action  which  the  common  law  gives  for  any  tort  by  a  physi- 
cian. But  it  is  submitted  this  is  not  so.  Economic  conditions  have 
entered  in,  which  preclude  the  enforcement  of  this  right.  The  great 
mass  are  entirely  incapable  financially  to  fight  a  case  through  our  law 
courts.  Then  again,  it  is  detrimental  to  the  welfare  of  the  state  as  a 
whole,  to  say  nothing  of  the  several  individuals  involved,  to  have  its 
citizens  engaging  in  continual  litigation  in  protection  of  their  rights. 
And  yet,  again,  it  is  an  economic  waste  to  have  men  engaged  in  or 
attempting  to  engage  in  the  practice  of  a  profession  for  which  they 
are  but  illy  fitted.    How  much  wiser  it  is  to  have  a  preliminary  weeding 


131 

out  process  in  order  that  each  may  find  what  has  been  termed  "his 
proper  angle  of  repose."  Statutes  regulating  the  medical  profession 
may,  therefore,  be  said  to  be  a  recognition  on  the  part  of  government 
that  the  state  must  interpose  itself  in  order  to  obviate  these  difficulties 
as  much  as  possible,  and  thus  assist  the  individual. 

Finally,  there  is  the  criminal  element  with  which  to  contend.  It  is 
this  class  which  of  itself,  with  its  modern-day  skill  and  science,  con- 
stitutes this  profession  a  most  potential  factor  in  aiding  and  abetting 
that  problem  of  all  time  the  "social  evil."  And  then  there  are  those 
practitioners  who  make  a  living  out  of  performing  abortions.  Were 
the  profession  of  medicine  not  thus  prostituted,  an  effectual  check 
would  be  found  for  which  sociologists  and  legislators  have  searched 
time  out  of  mind.  With  these  points  in  view,  it  is  not  so  difficult  to 
answer  affirmatively  the  question  as  to  whether  or  no  an  attempt  should 
be  made  to  regulate  the  practice  of  medicine.  Wherein  can  it  be 
shown  that  it  is  unfair  or  unreasonable  for  all  men  to  be  subjected 
alike  to  an  identical  condition  prior  to  their  engaging  in  the  prac- 
tice of  medicine?  If  this  were  done  it  is  submitted  that  all  who  were 
able  to  qualify  and  to  be  licensed  would  soon  reach  their  level  through 
the  law  of  the  survival  of  the  fittest.  To  be  sure  there  would  yet  be 
those  who  are  imprimis  persona  non  grata  in  any  walk  of  life.  But 
it  is  submitted  that  these  could  the  more  readily  be  discerned  and 
consequently  obliterated  through  the  uniform  operation  of  identical 
laws  enacted  throughout  the  United  States. 


CHAPTER  IV 

CONDITIONS  PRECEDENT  AND  SUBSEQUENT  TO 
THE  RIGHT  TO  PRACTICE  MEDICINE 


61.  The  Right  to  Practice  Medicine. 

62.  General  Requirements.     Conditions  Precedent. 

63.  Proof  of  Moral  Character. 

64.  Reputability  of  Applicant's  Medical  College. 

65.  Presentation   of  Diplomas,  Examinations,  Fees,   Etc.,   as   Conditions 

Precedent. 

66.  Registration  of  Licenses  as  a  Condition  Precedent. 

67.  Persons  Who  Have  Failed  to  Perform  the  Conditions  Precedent. 

68.  Impossibility  of  Performing  the  Condition  Precedent — Corporations. 

69.  The  Exceptions  under  the  Statutes. 

70.  Conditions  Subsequent.     Unprofessional  Conduct. 

A.  In  General. 

B.  Grounds  for  Revocation  of  License. 

(1)  Fraud  in  Procuring  a  License. 

(2)  Conviction  of  a  Crime  Involving  Moral  Turpitude. 
(S)  Felony  or  Gross  Immorality. 

(4)  Procuring  or  Aiding  and  Abetting  in  Procuring  a  Criminal 

Abortion. 

(5)  Advertising  of  a  Fraudulent  or  Immoral  and  Illegal  Nature. 

(6)  Unprofessional    or    Dishonorable    Conduct    of    a    Character 

Likely  to  Deceive  or  Defraud  the  Public. 


§  61. — The  Right  to  Practice  Medicine 
As  regards  the  profession  of  medicine  there  seems  to  be  no  little 
doubt  in  the  several  jurisdictions  as  to  whether  or  no  the  right  to 
enter  and  to  pursue  it  is  absolute  or  entirely  dependent  upon  govern- 
mental license.  Now  this  right  to  practice  medicine,  which  is  most 
assuredly  a  valuable  right,  whether  it  be  classed  as  an  absolute 
property  right,  strictly  speaking,  or  as  a  mere  privilege,  is  one  subject 
to  governmental  supervision.  Therefore  a  determination  of  its  pre- 
cise status  would  seem  quite  important.1 

Not  a  few  authorities  have  boldly  declared  that  the  right  to  enter 
the  profession  is  a  right  inherent  in  all  citizens  and  consequently  that 


1.  Smith  v.  Board  (la.),  117  N.  W.  1116. 
Chenoweth  v.  State  (Colo.),  135  Pac.  771. 


133 

the  right  to  continue  in  the  practice  of  medicine  is  all  the  more  a 
valuable  property  right.  Hence  it  is  argued  that  neither  of  these  rights 
with  more  reason  perhaps  for  the  latter,  are  subject  to  any  unwar- 
ranted governmental  interference.2 

But  it  is  submitted  that  this  statement  seems  hardly  logical.  Espe- 
cially since  it  is  recognized  that  each  of  these  alleged  rights  are  sub- 
ject to  governmental  supervision  and  regulation.  Hence  it  would 
seem  more  competent  to  hold  that  there  is  no  vested  right  either  to 
enter  or  to  continue  in  the  practice  of  medicine,  and  that  what  is 
claimed  as  a  natural  or  absolute  right  is  nothing  more  than  a  privilege 
or  a  right  upon  condition,  in  this  respect  being  similar  to  the  practice 
of  law.3 

In  the  regulation  of  the  practice  of  medicine  the  government  is 
acting  as  a  guardian  of  the  public  good  and  general  welfare.  Any 
action  taken  in  the  premises  being  similar  to  the  regulation  of  certain 
specified  pursuits  which  have  from  time  to  time  been  declared  dan- 
gerous to  the  community,  and  which  are  as  a  consequence  either 
entirely  suppressed  or  subjected  to  more  or  less  stringent  regulations. 
Whenever  the  pursuit  of  any  particular  occupation  or  profession 
requires,  for  the  protection  of  the  lives  or  health  of  the  general  public, 
skill,  integrity,  knowledge  or  other  personal  attributes  or  character- 
istics in  its  followers  and  government  takes  steps  to  insure  the  posses- 
sion of  these  attributes  and  characteristics,  then  the  right  to  enter  upon 
such  a  calling  ceases  to  be  an  absolute  right,  if  it  ever  was  one,  and 
becomes  a  mere  privilege  which  vests  in  possession  only  upon  a  com- 
pliance with  the  several  conditions  precedent  of  government.  And 
further  it  is  submitted  that  there  never  is  a  vesting  in  interest,  that 
is  to  say,  a  right  to  continue  in  the  calling  or  profession,  but  that 
there  is  a  mere  user  in  the  licensee.  For  it  would  seem  that  the 
title  so  to  speak,  remains  in  the  state  together  with  a  right  to  dis- 
possess the  user  for  failure  to  comply  with  certain  specified  condi- 
tions subsequent.4    These  two  so-called  rights,  as  respects  the  medical 


2.  Hewitt  v.  Board,  148  Cal.  590,  84  Pac.  31. 
State  v.  Chapman,  69  N.  J.  L.  454,  55  Atl.  94. 

Matthews  v.  Murphy,  23  Ky.  750,  63  S.  W.  785,  54  L.  R.  A.  415. 

3.  Board  v.  Fowler,  50  La.  Ann.  1358. 
State  v.  Davis,  194  Mo.  485. 
People  v.  Phippen,  70  Mich.  6. 

State  v.  Edmunds  (Iowa),  101  N.  W.  431. 

State  v.  Board,  32  Minn.  324. 

State  v.  State,  34  Minn.  387. 

Lewis  v.  State   (Tex.),  155  S.  W.  523. 

4.  Board  v.  Fowler,  50  La.  Ann.   1358. 
Hewitt  v.  Charier,  16  Pick  (Mass.)  353. 
People  v.  Phippen,  70  Mich.  6. 


134 

profession,  may  be  merged  into  one,  viz.,  the  right  to  pursue  the 
practice  of  medicine.  And  this  right  is  entirely  subject  to  a  compliance 
with  said  conditions  precedent  and  subsequent  of  government. 

With  these  points  in  mind  it  may  be  generally  stated  that  any 
person  has  the  right  to  pursue  any  lawful  calling,  business  or  pro- 
fession he  may  choose,  subject  only  to  the  restrictions  of  govern- 
ment for  the  welfare  and  safety  of  society.  Thus,  certain  occupa- 
tions, not  in  themselves  unlawful,  are  so  restricted  from  motives  of 
the  general  public  health  and  welfare.  And  among  such  callings  so 
restricted  falls  the  profession  of  medicine.5 

The  vocation  of  the  physician  is  undoubtedly  a  lawful  one  and  all 
that  is  exacted  of  this  profession  is  that  every  one  who  assumes  to 
pursue  it  must  be  possessed  of  the  requisite  knowledge  and  skill, 
and  that  this  be  evidenced  by  a  license  or  a  certificate  granted  by  the 
proper  governmental  authorities.6 

Thus,  while  a  person  who  fails  to  possess  a  proper  license  or  who 
is  unable  to  proffer  sufficient  proof  of  its  possession  will  be  prosecuted 
should  he  attempt  so  to  practice  medicine  unlawfully,  yet  the  field 
is  open  to  every  one  possessing  the  necessary  qualifications  duly 
attested  by  the  public  agencies  provided  by  government.7 

Under  such  regulations  there  is  no  discrimination  as  to  persons  or 
methods.  The  law  simply  requires  that  all  undergo  the  same  exam- 
ination and  then  each  and  every  person  licensed  may  treat  disease  in 
the  way  by  him  deemed  best.  There  is  no  attempt  to  say  how  disease 
shall  be  treated  by  any  one.  It  is  required  simply  that  all  persons 
who  shall  treat  or  offer  to  treat  disease  must  have  a  proper  knowl- 
edge of  their  subject.  Herein  no  one  is  excluded  from  the  profession, 
and  no  method  of  attempting  to  heal  the  sick,  however  occult,  is  pro- 
hibited. The  object  of  such  regulation  is  not  to  make  any  particular 
method  unlawful  but  rather  to  protect  any  given  community  from  the 
evils  of  empiricism.8 


State  v.  Board,  32  Minn.  324. 
State  v.  Bair,  112  Iowa  466. 
State  v.  Bair,  112  Iowa  466. 
State  v.  Board,  32  Minn.  324. 
In  re  Campbell,   197  Pa.  581. 
State  v.  Carey,  4  Wash.  424. 
Fox  v.  Territory,  2  Wash.  T.  297. 
State  v.  Davis,  194  Mo.  485. 
Board  v.  Fowler,  50  La.  Ann.  1358. 
State  v.  Hathaway,  115  Mo.  36. 
State  v.  Edmunds,  127  Iowa  333. 
Singh  v.  State  (Tex.),  146,  S.  W.  891. 
Eastman  v.  State,  109  Ind.  282. 
State  v.  Heath,  125  Iowa  585. 
State  v.  Wilhite,  132  Iowa  226. 


135 

Laws  regulating  the  practice  of  medicine  are  in  most  jurisdictions 
generally  one  of  a  series,  devoted  to  the  conservation  of  the  public 
health.  Other  regulations  of  the  same  nature  are  acts  creating  boards 
of  health,  state  and  local,  pure  food  laws,  vital  statistics,  quarantine, 
water-supply,  sewage,  pharmacy  and  the  like.  A  medical  practice 
act  may  make  burdensome  requirements  of  the  members  of  the  pro- 
fession not  simply  in  the  interest  of  patients  for  the  time  being,  but 
of  the  public  welfare  generally.  For  it  is  a  matter  of  general  concern 
that  persons  who  are  to  be  responsible  for  the  discharge  of  these 
obligations  should  be  known  and  that  their  qualifications  to  render 
the  public  service  demanded  of  them  should  be  ascertained.  Beyond 
this  the  state  is  specially  interested  in  protecting  sick  people  from 
empiricism  and  from  charlatanry ;  from  the  quack  who  is  ignorant  of 
healing,  and  the  fake  who  is  an  adept  at  swindling. 

Consequently  it  is  recognized  as  entirely  competent  in  government 
to  submit  a  fairly  relevant  definition  of  the  practice  of  medicine  and 
to  require  the  registration  of  certificates  and  licenses  in  the  same  man- 
ner that  an  attorney  is  enrolled  in  a  court  of  record.  But  in  fixing 
on  a  test  of  a  person's  right  to  practice  medicine,  the  basis  must  be 
merit  and  not  some  criterion  arbitrarily  selected,  irrespective  of  its 
relation  to  the  medical  profession.9 

With  the  practice  of  medicine  thus  subjected  to  government  it  will 
readily  be  seen  that  the  physician  has  no  vested  property  right,  but 
that  his  right  to  pursue  the  profession  is  in  fact  but  a  qualified  right 
or  a  privilege.10 

It  is  in  this  light  then  that  the  right  to  practice  medicine  will  be 
regarded  in  giving  consideration  to  the  several  conditions  precedent 
and  subsequent  thereto. 

§  62. — General  Requirements — Conditions  Precedent 
While  it  is  said  that  all  persons  may  practice  medicine  it  should 
be  added  that  it  is  only  all  persons  who  can  qualify  under  the  law 
who  may  practice.     And  in  the  several  jurisdictions  various  methods 


9.  State  v.  Cotner  (Kan.),  127  Pac.  1. 
People  v.  Phippen,  70  Mich.  6. 
Parks  v.  State,  159  ind.  211. 
Richardson  v.  State,  47  Ark.  562. 
State  v.  Pennoyer,  65  N.  H.  113. 
State  v.  Bair,  112  Iowa  466. 
But  see 

State  v.  Chenoweth  (Colo.),  135  Pac.  771. 
State  v.  Graeb  (Colo.),  135  Pac.  776. 
10.  State  v.  Board,  32  Minn.  324. 


136 

and  means  are  employed  to  prove  such  qualifications  under  the 
law. 

Whatever  other  conditions  there  may  be,  it  would  seem  that  the 
primary  and  fundamental  requisite  is  with  hardly  an  exception  in 
all  jurisdictions  the  obtaining  of  a  certificate  or  license  to  practice 
medicine.  And  it  is  around  this  evidence  of  qualification  that  the 
struggle  centers,  for  a  certificate  or  license  may  be  refused  or 
revoked  for  cause,  or  a  person  may  be  prosecuted  as  a  criminal  for 
attempting  to  practice  medicine  without  it.  Hence  many  statutes, 
especially  the  more  recent  ones,  go  into  great  detail  as  to  the  way  in 
which  a  license  may  be  obtained,  and  to  whom  it  may  be  granted. 

If  in  determining  in  a  given  case  whether  or  no  to  grant  a  license 
the  question  were  simply  —  Has  the  applicant  complied  with  the  law 
and  performed  the  conditions  precedent?  Then  the  adjudication  of 
the  issue  so  submitted  would  not  present  any  seemingly  unsurmount- 
able  difficulty.  But  the  various  medical  practice  acts  do  not  stop 
with  requiring  only  that  an  applicant  must  present  proof  of  moral 
character  and  of  his  skill  and  ability  in  his  profession.  One  and  all 
have  apparently  included  in  their  language  exceptions  and  exemptions 
that  more  than  anything  else  give  grounds  for  the  complaint  of 
monopoly  and  special  privilege.  It  is  in  such  addenda  that  cause  is 
found  for  an  unnecessary  mass  of  litigation.  It  is  submitted  that  it 
is  not  essential  to  except  various  so-called  cults  from  the  requirements 
of  the  law.  For  therein  the  law  protects  charlatanry  and  empiricism. 
The  law  should  compel  all  to  perform  the  same  identical  conditions 
and  then  allow  each  individual  to  practice  whatsoever  system  he  may 
choose.  It  is  further  submitted  that  permitting  the  several  so-called 
schools  of  medicine  to  become  divergent  is  entirely  unnecessary. 
There  is  no  hardship  placed  on  any  one  in  requiring  that  he  know 
something  of  the  human  body  before  being  allowed  to  practice  medi- 
cine or  to  treat  for  real  or  imaginary  ills.  Possibly  certain  practi- 
tioners would  not  feel  quite  so  certain  that  illness  and  disease  does 
not  exist  and  would  be  somewhat  more  willing  to  place  an  abiding 
faith  in  the  efficacy  of  the  regular  methods  of  treatment.  And  too 
there  would  be  more  hesitancy  in  adopting  new  systems  and  in  con- 
demning the  old.  To  be  sure,  this  would  be  an  absolute  bar  to  many 
of  the  now  practitioners.  But  who  would  hesitate  to  adopt  a  rigid 
and  uniform  educational  test  if  such  a  step  were  to  rid  society  of 
these  enumerable  cure-alls,  who  so  brazenly  assert  that  they  only 
have  the  universal  panacea  for  all  human  ills? 


137 

As  the  law  now  stands,  then,  a  license  is  required  of  all  who  desire 
to  practice  medicine.11 

And  the  law  requires  that  a  board  of  examiners  shall  be  instituted 
who  shall  pass  upon  the  credentials  of  all  applicants  therefore- 
Having  established  the  deus  ex  machina  the  law  next  provides 
what  credentials  applicants  must  submit  in  order  to  become  a  duly 
accredited  practitioner  of  medicine.  It  is  usually  required  that  proof 
of  moral  character  must  be  submitted  and  that  each  applicant  must 
prove  his  ability  to  pursue  his  profession.  This  latter  may  be  by 
filing  a  diploma  from  a  recognized  medical  college  or  by  an  examina- 
tion, or  by  both.  In  many  states  the  law  even  sets  forth  the  number 
of  hours  which  must  be  spent  in  preparation  and  the  subjects  in  which 
applicants  must  be  examined.  And  in  not  a  few  states  the  greatest 
detail  as  to  these  requirements  is  even  to  be  found.13 

§  63. — Proof  of  Moral  Character 
In  many  states  it  is  provided  that  the  state  board  of  examiners  may 
refuse  to  grant  a  certificate  to  a  person  who  is  unable  to  submit 
proof  of  proper  moral  character  or  to  a  person  who  is  actually  guilty 
of  what  may  be  broadly  termed  "unprofessional  and  dishonorable 
conduct."14 

(a)  A  person  licensed  to  practice  under  the  prior  law  is  not 

"IPSO  FACTO''''  ENTITLED  TO  PRACTICE  UNDER  A  SUBSEQUENT  LAW 

An  old  license  issued  under  a  prior  law  does  not  necessarily 
entitle  the  holder  thereof  to  practice  under  a  new  law,  unless  the 
board   of   examiners    is    satisfied,    on   an   examination,   that   such   a 


11.  State  v.  Fliescher,  41  Minn.  69. 
State  v.  Vandersluis,  42  Minn.  129. 
Harding  v.  People,  10  Colo.  387. 
People  v.  L-angdon,  219  111.  189. 
Smith  v.  State  (Ala.),  63  So.  28. 
But  see 

Chenoweth  v.  State  (Colo.),  135  Pac.  771. 
Graeb  v.  State   (Colo.),  135  Pac.  776. 

12.  State  v.  Vandersluis,  42  Minn.  129. 
Harding  v.  People,   10  Colo.  387. 
Chenoweth  v.  State  (Colo.),  135  Pac.  771. 

13.  State  v.  Vandersluis,  42  Mo.  129. 
Harding  v.  People,  10  Colo.  387. 

14.  Meffert  v.  Board,  66  Kan.  710. 
Williams  v.  People,  121  111.  84. 
State  v.  Webster,  150  Ind.  607. 
State  v.  Board,  32  Minn.  324. 
People  v.  McCoy,  125  111.  289. 
State  v.  Roy,  22  R.  I.  538. 


138 

license  was  obtained  without  fraud  or  misrepresentation,  and  besides 
that  the  applicant  is  morally  a  fit  person  to  engage  in  the  practice 
of  medicine.  The  old  license  is  revoked  by  the  new  law,  and  remains 
in  force  only  until  the  board  has  acted  on  the  application  for  the  new 
license.  If  the  license  is  refused  on  the  application  made,  such  per- 
son has  no  right  to  practice  medicine,  unless  on  appeal  of  the  court 
from  the  action  of  the  board,  the  board  is  required  to  issue  a  license. 
The  subsequent  statute  is  in  itself  notice  that  the  legislature  has  set 
aside  the  old  licenses  and  given  a  reasonable  time  in  which  to  apply 
for  new  ones.  Hence,  when  an  applicant  presents  himself  to  the  board 
for  a  new  license  he  must  be  held  to  have  notice  of  whatever  dis- 
position the  board  may  make  of  his  application.  A  board  may  at  such 
times  refuse  to  grant  a  license  even  though  the  applicant  has  been 
previously  licensed  on  proof  of  improper  character  and  the  like.15 

(b)    USING  NOTES  AND  MEMORANDA  IN   ANSWERING  EXAMINATION 

QUESTIONS 

The  use  of  notes  and  memoranda  in  answering  examination  ques- 
tions may  be  taken  as  constituting  "unprofessional  and  dishonorable 
conduct."  An  applicant  for  a  certificate  to  practice  medicine  if 
detected  in  their  use  may  be  denied  the  privilege  of  continuing  the 
examination.  After  a  written  notice  and  an  examination  into  the 
facts  by  the  board,  if  found  guilty,  the  applicant  may  be  refused  a 
certificate  to  practice  medicine.16 

(c)    CHANGING  A  LIMITED  LICENSE  BY  AN  ERASURE  TO  A  VALID 

UNLIMITED    LICENSE    IS    SUFFICIENT    GROUNDS 

FOR  A  REFUSAL 

If  a  board  has  no  power  to  issue  a  temporary  permit  then  one  of 
that  nature  is  void  and  of  none  effect  and  the  holder  thereof  has  no 
right  to  practice  medicine.  Nor  will  the  fact  that  the  holder  has 
passed  a  successful  examination  render  such  license  valid.  The  license 
being  void  the  board  may  vacate  the  record  thereof  when  the  holder 
of  such  a  license  by  erasure  removes  the  limitation  as  to  time,  thereby 
making  said  license  to  appear  on  its  face  to  be  a  valid  unlimited 
license  so  as  to  secure  its  registration  and  the  recordation  of  his  name 
as  a  licensed  practitioner.  When  a  record  is  admittedly  fraudulent, 
a  court  of  justice  will  not  intercede  to  reinstate  it,  even  though  it  was 
vacated  without  notice  to  the  party  affected  by  the  order.     A  party 


15.  State  v.  Webster,  ISO  Ind.  607. 

16.  State  v.  District  Court,  26  Mont.  121. 
Curryer  v.  Oliver,  27  Ind.  App.  424. 


139 

insisting  on  a  privilege  vouchsafed  to  him  by  a  license  or  record  which 
he  conceded  to  have  been  adopted  through  his  own  willful  and  fraudu- 
lent act  cannot  insist  on  the  aid  of  a  court  to  allow  him  to  enjoy  the 
fruits  of  his  own  wrong.17 

(d)    ADVERTISING  AS  GROUNDS  FOR  REFUSING  A  LICENSE 

An  application  for  a  license  may  be  refused  on  the  ground  that 
the  applicant  has  been  conducting  himself  in  an  unprofessional  and 
dishonorable  manner.  Advertising  in  the  newspapers  and  by  circu- 
lars to  be  a  medicine  man  of  an  Indian  tribe  and  claiming  in  such 
publications  the  proprietorship  of  a  certain  specific  which  he  claimed 
would  cure  cholera  and  other  such  diseases  when  taken  internally, 
and  rheumatism  when  applied  externally,  would  constitute  unpro- 
fessional conduct  since  such  claims  would  seem  to  be  impossible  and 
untrue.  Clearly  a  refusal  to  issue  a  license  on  any  such  grounds 
should  have  the  entire  support  of  the  courts.18 

(e)   FELONY  OR  GROSS  IMMORALITY 

A  state  board  may  refuse  to  grant  a  certificate  to  any  person  who 
may  be  guilty  of  a  felony  or  gross  immorality.  It  is  not  necessary 
that  the  applicant  should  be  grossly  immoral  with  his  patients  to  give 
the  board  jurisdiction,  for  gross  immorality  in  his  general  habits  would 
be  quite  sufficient.  The  object  sought  is  to  protect  the  houses  of  the 
sick  and  distressed  from  any  intrusion  in  a  professional  character  of 
vicious  and  unprincipled  men.  It  is  not  the  purpose  of  the  law  makers 
to  clothe  such  a  man  with  a  certificate  of  moral  character  and  then  send 
him  out  to  prey  upon  the  weak  and  unsuspecting,  or  those  who  would 
be  entirely  at  his  mercy  and  then  quietly  await  the  accomplishment 
of  that  which  observation  and  experience  has  taught  is  certain  to 
follow  before  depriving  such  person  of  the  endorsement  which  gave 
him  the  opportunity  to  commit  the  wrong.  The  law  disqualifies  one 
who  is  guilty  of  a  felony.  It  is  not  necessary  that  the  felony  be 
committed  on  a  patient  or  against  the  property  of  the  patient  or  while 
the  physician  was  attending  the  patient  in  order  to  have  grounds  on 
which  to  base  a  charge  of  unprofessional  or  immoral  conduct.19 


17.  Vulk  v.  Saylor,  42  Ore.  546. 

18.  State  v.  Board,  32  Minn.  324. 
Kennedy  v.  State,  145  Mich.  241. 
But  see 

State  v.  Chenoweth  (Colo.),  135  Pac.  771. 
State  v.  Graeb  (Colo.),  135  Pac.  776. 

19.  Meffert  v.  Packert,  66  Kan.  710  (s.  c.  aff.  195  U.  S.  625). 
'Board  v.  Coffin,  152  Ind.  439. 

Rose  v.  Baxter,  81  Ohio  St.  522,  7  Nisi  Prius  (N.  S.)  132. 


140 

§  64. — Reputability  of  Applicant's  Medical  College 

Having  submitted  his  credentials  as  to  his  moral  character  it  next 
devolves  upon  applicant  for  a  license  to  make  profert  of  his  educa- 
tional credentials.  This  is  done  by  filing  either  a  diploma  from  a 
recognized  medical  college,  or  by  passing  an  examination  under  the 
supervision  of  the  board,  or  by  both.  It  is  to  be  noticed  that  when- 
ever a  diploma  is  required  it  is  specified  that  it  must  be  a  diploma 
from  a  medical  college  in  good  standing  or  from  a  legally  recognized 
medical  college.  And  as  to  whether  or  not  a  college  is  in  good  stand- 
ing is  a  question  entirely  in  the  board's  discretion.20 

Reputability  as  used  in  these  statutes  would  seem  to  have  its  ordi- 
nary meaning.  It  is  in  addition  to  the  other  requirements  of  a  col- 
lege. Provisions  of  this  nature  as  found  in  a  medical  practice  act 
are  for  the  purpose  of  protecting  the  public  against  schools  which  sell 
diplomas.21 

Reputability  under  the  law  is  within  the  judgment  and  discretion 
of  the  board  of  examiners  for  determination.  And  whether  or  no 
a  given  school  is  reputable  is  a  question  of  fact  and  not  of  law.22 

It  is  purely  a  question  of  fact  whether  a  given  college  has  com- 
plied with  the  law  as  regards  its  courses  of  instruction.  Under  the 
law  such  facts  are  left  to  the  board  of  examiners,  their  action  to  be 
predicated  on  requisite  facts.  No  other  tribunal  is  authorized  to 
have  this  power  of  investigation  delegated  to  them,  for  the  act  of 
ascertaining  and  determining  these  facts  is  in  nature  judicial,  and 
involves  investigation,  judgment,  and  discretion.23 

It  may  be  said  that  a  board  of  examiners  is  authorized  to  endorse 
diplomas  as  satisfactory  when  such  are  issued  by  reputable  medical 
colleges  of  which  there  has  been  had  sufficient  proof  as  to  the  good 
standing  thereof.  Powers  thus  conferred  are  broad  and  comprehen- 
sive and  in  some  respects  at  least  must  in  their  nature  be  final.    The 


20.  State  v.  Vandersluis,  42  Minn.  129. 
Vadney  v.  Board  (Ida.),  112  Pac.  1046. 
State  v.  Adcock,  124  Mo.  1100. 

Iowa  v.  Schrader,  87  Iowa  659. 
State  v.  Cooper,  123  111.  227. 
People  v.  Board,  110  111.  180. 
State  v.  Board,  93  Tenn.  619. 

21.  People  v.  Board,  110  111.  180. 
State  v.   Schmidt,  138  Wis.  53. 

22.  State  v.  Cooper,  123  111.  227. 
People  v.  Board,  110  111.  180. 

23.  State  v.  Cooper,  123  111.  227. 
People  v.  Board,  110  111.  180. 


141 

action  of  the  board  does  not  depend  on  any  specified  piece  of  evidence 
as  fixed  by  statute,  but  on  such  facts  as  will  satisfy  the  board.'-'4 

If  a  board  has  decided  a  college  to  be  reputable  it  has  exhausted 
its  judicial  power  and  must  issue  licenses  to  applicants  therefrom.  It 
is  the  duty  of  a  board  on  application  of  a  graduate  of  a  college  for 
a  license  to  decide  whether  or  no  the  college  issuing  his  diploma  is 
reputable.  This  question  the  board  itself  must  decide,  since  the  dis- 
cretionary power  of  that  purpose  cannot  be  delegated  to  any  other 
body  or  person.  The  question  of  reputability  must  be  decided  on 
just  and  fair  principles  and  not  on  motives  of  selfish  interest  or  to 
injure  a  rival  college.  The  board  must  be  controlled  by  honest 
judgment  and  not  by  prejudice  or  passion.  Discretion  vested  in  offi- 
cial bodies  must  not  be  exercised  to  gratify  feelings  of  malevolence, 
or  for  the  attainment  of  personal  or  selfish  ends,  or  for  arbitrary 
reasons,  but  for  the  public  good.25 

A  college  which  has  been  declared  in  good  standing  cannot 
arbitrarily  be  stricken  from  the  list  of  recognized  colleges  without 
timely  notice  given,  and  an  opportunity  to  be  heard.  It  is  immaterial 
that  well  founded  charges  have  been  preferred  against  a  college.  A 
board  cannot  without  further  investigation  order  that  no  certificate 
be  issued  to  its  graduates  till  the  standing  of  the  college  be  again 
determined  and  then  adjourn  until  the  next  regular  meeting.  Even 
if  at  such  regular  meeting,  and  after  a  proper  hearing  in  due  form,  the 
college  be  finally  adjudged  disreputable,  such  ruling  cannot  affect  the 
application  of  a  graduate  filed  subsequent  to  such  adjournment,  but 
prior  to  the  ultimate  finding  of  the  state  board.  In  refusing  to  issue 
a  license  under  such  circumstances  a  board  would  be  acting  arbi- 
trarily, unjustly  and  without  authorization.  For  action  taken  with- 
out investigation,  and  without  other  cause  or  information  than  the 
filing  of  charges  by  a  stranger,  is  highly  improper,  and  hence  adjourn- 
ment after  such  a  ruling  without  affording  any  means  of  relief  to 
the  college  or  its  graduates  until  the  next  regular  meeting  would  seem 
entirely  illegal.  A  board  is  not  precluded  from  reversing  a  former 
ruling,  but  it  may  not  do  so  arbitrarily  and  without  investigation.  An 
inquiry  need  not  be  as  formal  as  a  court's  would  be,  but  a  determina- 
tion must  be  based  on  inquiry  and  facts,  and  not  on  the  mere  will 
of  the  board.    A  board  is  fully  authorized  to  determine  upon  a  proper 


24.  VanVleck  v.  Board  (Cal.),  48  Pac.  223. 

25.  Board  v.  Cooper,  123  111.  227. 
People  v.  Board,  110  111.  180. 


142 

investigation  and  a  full  and  fair  examination  that  a  college  is  not  in 
good  standing.26 

A  graduate  cannot  be  refused  a  license  on  the  grounds  that  his 
college  is  not  in  good  standing  with  the  board  to  which  he  has  applied 
for  a  license  if  the  college  has  not  been  duly  notified  as  to  the  require- 
ments of  such  board.  All  colleges  must  be  given  ample  opportunity 
to  furnish  the  board  with  statements  as  to  their  requirements  and 
then  the  colleges  must  be  duly  notified  as  to  any  rules  and  regulations 
which  such  board  may  determine  upon  as  to  the  receipt  of  applica- 
tions and  the  recognition  of  credentials.  It  would  be  immaterial  as 
respects  a  given  college  whether  or  not  all  other  colleges  were  given 
timely  notice  supposing  the  college  in  question  failed  to  receive  such 
notice  at  such  a  time  that  proper  action  could  be  taken.  A  board 
cannot  declare  a  college  unfit  when  the  college  has  not  been  properly 
notified.  Hence,  the  diplomas  of  any  persons  graduating  before  the 
receipt  of  such  a  notice  must  be  recognized  and  a  license  must  issue.27 

A  board  has  only  such  power  and  authority  as  the  law  gives  it. 
Hence,  a  board  cannot  refuse  a  license  to  an  applicant  on  the  ground 
that  his  college  is  not  in  good  standing  who  is  applying  under  a  law 
which  permits  a  license  to  issue  to  all  who  were  practicing  under  a 
prior  act,  and  who  had  been  theretofore  admitted  to  practice  simply 
on  a  presentation  of  a  diploma  from  a  college  which  had  a  bona  fide 
existence  without  raising  any  question  as  to  their  reputability  or  their 
good  standing.  For  although  a  board  may  be  impowered  to  examine 
as  to  the  reputability  of  the  college  of  an  applicant  under  the  now  law 
this  does  not  authorize  any  consideration  of  the  standing  of  a  college 
whose  graduates  were  duly  licensed  without  question  under  a  prior 
law  and  who  are  applying  for  recognition  under  the  now  law,  which 
says  "practitioners  under  the  prior  law  are  fully  qualified  upon  proof 
of  their  credentials  to  practice  under  the  now  law."  Clearly  in  such 
a  situation  no  issue  is  raised  as  to  the  good  standing  of  such  an 
applicant's  college,  for  under  the  prior  law  that  the  college  had  a 
bona  fide  existence  was  deemed  sufficient.  It  would  therefore  seem 
to  follow  that  an  applicant  who  has  previously  been  licensed  under 
such  circumstances  cannot  afterwards  be  refused  a  license  under 
a  subsequent  law  because  the  college  is  or  was  disreputable.  Of 
course  any  person  graduating  from  such  a  college  subsequent  to  the 
now  law  may  be  refused  a  license  should  the  college  be  disreputable. 
But  if  a  person  has  a  diploma  from  a  college  and  has  been  licensed 


26.  Iowa  v.  Schrader,  87  Iowa  659. 

27.  State  v.  Lutz,  136  Mo.  633. 


143 

under  a  prior  law,  that  fact  together  with  the  now  law  would  pre- 
clude any  refusal  by  a  board  of  a  license  on  the  ground  that  such 
college  is  or  was  not  in  good  standing,  in  pursuance  with  the  stand- 
ards of  the  now  law.1'* 

A  board  may  make  up  a  list  of  all  colleges  which  it  deems  repu- 
table and  may  accept  diplomas  from  such  colleges  without  question. 
But  due  notice  must  be  given  to  the  discredited  colleges  prior  to  any 
refusal  to  recognize  diplomas  of  such  colleges.  Nor  can  the  board 
refuse  to  examine  any  one  provided  he  can  prove  his  college  reputable. 
Under  a  law  which  requires  all  applicants  desiring  to  practice  medi- 
cine to  both  present  a  diploma  from  a  reputable  school  and  to  pass 
an  examination,  it  may  thereunder  be  left  to  the  board  to  promulgate 
rules  determining  as  to  the  requisites  of  reputability  and  the  like.  A 
board  cannot,  however,  ipso  facto  refuse  to  admit  an  applicant  to 
an  examination  because  his  diploma  is  from  an  unrecognized  school, 
but  the  applicant  must  be  given  full  opportunity  to  prove  his  college 
reputable,  and  on  failure  so  to  do  he  may  be  disqualified,  or  if  suc- 
cessful, admitted  to  an  examination.29 

§  65. — Presentation  of  Diplomas,  Examinations,  Fees,  Etc.,  as 
Conditions  Precedent 

Medical  practice  acts  in  the  several  states  would  seem  to  be  tend- 
ing in  the  same  general  directions  as  regards  conditions  precedent. 
The  idea  seems  to  be  to  require  the  presentation  of  a  diploma  from 
a  recognized  school  as  a  primary  condition  precedent  to  admission 
to  an  examination.  This  apparent  tendency  by  no  means  approaches 
universality,  as  yet,  as  many  states  allow  these  conditions  as  alter- 
natives. Hence,  it  may  be  said  that  the  presentation  of  a  diploma,  a 
successful  examination,  and  the  payment  of  the  required  fee  are  the 
most  common  conditions  precedent  to  licensure.  There  are  others, 
such  as  the  registration  of  licenses  and  the  like,  but  these  above  men- 
tioned are  the  ones  to  be  found  most  commonly  in  the  several  medical 
practice  acts.  It  will  be  necessary  to  make  a  careful  examination  of 
the  latest  law  of  each  state  to  ascertain  just  what  is  required  at  any 
given  time.  This  is  somewhat  of  a  burden  and  no  lasting  authorita- 
tive presentation  can  be  made  by  reason  of  frequent  changes  in  the 
several  states  of  the  various  states  by  amendment,  repeal  and  other- 


28.  Vadney  v.  Board  (Ida.),  112  Pac.  1046. 

29.  State  v.  Adcock  (Mo.),  124  S.  W.  1100. 
Barmore  v.   Board,  21    Ore.   301. 


144 

wise.  Consequently  but  the  merest  outline  as  to  the  existing  law  can 
herewith  be  presented.30 

It  is  clearly  the  intention  of  the  government,  it  would  seem,  that  no 
one  may  practice  medicine  who  has  failed  to  comply  with  the  law. 
That  is,  all  practitioners  must  be  possessed  of  a  license  or  a  certificate 
notwithstanding  the  particular  school  to  which  they  belong.  And  in 
order  to  obtain  such  license  the  condition  precedent  of  the  law  in 
force  at  the  time  of  such  practitioner's  application  must  be  complied 
with.  If  the  applicant's  credentials  prove  satisfactory  he  will  then  be 
entitled  to  all  the  privileges  obtaining  under  the  law.31 

Neither  the  possession  of  valid  diplomas  nor  the  ability  to  pass 
an  examination  may  of  themselves  be  sufficient  under  a  law.  But  the 
legislature  may  require  that  an  applicant  present  the  diploma  and 
submit  to  an  examination.  If  such  be  the  case  the  applicant  must 
comply  with  the  law  before  a  license  will  issue,  because  neither  one 
is  sufficient  to  vest  him  with  the  right  to  practice  medicine.32 

The  mere  fact  of  graduating  from  a  medical  college  does  not  entitle 
a  person  to  practice  medicine  in  Minnesota  under  the  session  laws  of 
1894.  But  the  holder  of  the  diploma  must  submit  to  an  examination 
before  he  will  be  fully  qualified  to  practice  under  the  law.33 

An  applicant  for  a  license  to  practice  medicine  or  dentistry  in 
Tennessee  is  not  entitled  to  such  license  on  the  bare  presentation  of 
a  diploma.  But  such  applicant  must  present  a  diploma  from  a  repu- 
table college  and  submit  to  an  examination  to  test  his  qualifications 
to  practice.34 

Under  the  law  in  Vermont  it  was  the  duty  of  the  Board  of  Censors 
to  issue  licenses  without  examination  to  all  persons  who  furnished 
evidence  by  diploma  from  some  medical  school  authorized  to  confer 
degrees  in  medicine  and  surgery  of  their  qualifications  for  licensure. 


30.  State  v.  Adcock  (Mo.),  124  S.  W.  1100. 
Barmore  v.   Board,  21   Ore.  301. 

State  v.  Lutz,  136  Mo.  633. 
State  v.  Vandersluis,  42  Minn.  129. 
State  v.  Cotner  (Kan.),  127  Pac.  1. 
Ex  parte  Whitley,  144  Cal.  167. 
Gage  v.  Board,  93  Tenn.  619. 
Arwine  v.  Board,  151  Cal.  499. 
State  v.  Currans,  111  Wis.  431. 
People  v.  Somme,  104  N.  Y.  S.  946. 

31.  Harding  v.  People,  10  Colo.  387. 
Ex  parte  Whitley,  144  Cal.  167. 
Arwine  v.  Board,  151  Cal.  499. 

32.  State  v.  Board   (Wash.),  93  Pac.  515. 

33.  State  v.  Oredson,  96  Minn.  509. 

34.  State  v.  Board,  93  Tenn.  619. 


145 

The  board  could  satisfy  itself  as  to  whether  or  no  the  person  pre- 
senting such  a  diploma  obtained  it  after  pursuing  some  prescribed 
course  of  study  and  upon  due  examination.  Under  such  a  law  the 
Board  of  Censors  cannot  refuse  to  grant  a  license  to  practice  medi- 
cine on  any  other  ground  than  the  applicant's  lack  of  medical  knowl- 
edge without  a  trial  or  that  the  applicant  is  of  an  improper  character.35 

Every  graduate  of  any  legally  authorized  college  in  any  one  of 
the  United  States  or  in  any  other  country  after  having  registered  was, 
at  one  time,  permitted  to  practice  under  the  Michigan  law.  There- 
under it  was  not  prohibited  to  any  physician  or  surgeon  to  practice 
medicine  or  surgery  because  he  was  not  a  citizen  of  the  said  state,  but 
it  made  the  real  test  of  the  right  to  practice  that  an  applicant  should 
be  a  graduate  of  any  legally  authorized  medical  college  in  any  one  of 
the  United  States,  or  in  any  other  country.3*5 

A  degree  of  M.D.  when  conferred  by  a  college  which  under  its 
charter  is  not  authorized  to  grant  such  degree  is  insufficient  and  has 
not  the  legal  efficacy  to  warrant  the  issue  of  a  license,  and  this  would 
seem  to  follow  under  the  law  of  any  state.  Hence  a  board  having 
the  power  to  decide  whether  or  no  a  diploma  is  genuine  or  spurious 
may  reject  such  a  diploma  when  its  issuance  by  a  college  is  ultra 
vires  and  the  holder  thereof  may  not  practice  medicine.37 

Again,  a  person  who  is  a  graduate  of  a  medical  college  and  has 
received  the  degree  of  M.D.  cannot  ipso  facto  practice  medicine  in 
a  state  which  requires  the  registration  of  diplomas  and  the  like  as  a 
condition  precedent  to  the  right  of  practice.  The  purpose  of  such 
an  act  is  to  restrict  the  practice  of  medicine  or  surgery  to  those  per- 
sons whose  education  and  training  may  reasonably  be  supposed  to 
have  qualified  them  for  the  business.  These  acts  apply  to  all,  to 
the  most  skillful  physician  and  the  mere  tyro.  Each  must  register. 
And  hence  it  is  that  a  person  who  is  a  graduate  of  more  than  one 
college  even  and  who  has  practiced  for  more  than  eighteen  years 
in  some  foreign  state  before  removing  to  any  given  state,  is  not 
thereby  exempted  from  a  compliance  with  the  laws  of  that  state.38 

The  requirement  of  a  diploma  or  of  an  examination  in  lieu  thereof 
must  be  complied  with.  The  argument  that  a  requirement  of  an  exam- 
ination or  a  diploma  of  all  applicants  for  a  license  is  whimsical,  is 


35.  Gage  v.  Censors,  63  N.  H.  92. 

36.  People  v.  Phippin,  70  Mich.  6. 

37.  Townsend  v.  Board,  62  Vt.  373. 

38.  Dodge  v.  State,  17  Neb.  140. 


146 

without  foundation.  It  is  entirely  reasonable  and  places  no  undue 
burden  on  any  individual  to  require  like  conditions  of  all.39 

A  state  board  of  health  refused  to  recognize  the  diplomas  of  a 
foreign  university  on  the  grounds  that  such  university  was  not  a 
reputable  and  legally  chartered  medical  school.  But  the  board  licensed 
applicants  who  had  been  previously  licensed  to  practice  by  the  board 
of  examiners  in  the  said  foreign  state  and  the  board  of  that  foreign 
state  licensed  the  graduates  from  the  college  in  question.  And  further 
the  board  had  licensed  the  graduates  of  the  said  college  who  had  been 
previously  licensed  in  the  foreign  state.  It  would  seem  that  this 
could  only  be  taken  as  an  endorsement  of  the  college  which  the  board 
alleged  to  be  without  good  standing.  And  thus  apparently  it  would 
follow  that  a  college  can  be  endorsed  as  reputable  indirectly  by  accept- 
ing its  graduates  who  have  been  previously  licensed  under  the  laws 
of  the  state  wherein  the  said  college  is  situated  without  any  other 
evidence  of  qualification  than  the  diploma  of  the  said  college,  which  is 
not  otherwise  recognized  as  reputable  by  the  said  local  board  of 
examiners.  A  board  therefore  cannot  refuse  to  recognize  the  diploma 
of  a  college  located  in  a  foreign  state  on  grounds  of  reputability  when 
it  in  fact  admits  the  holders  of  diplomas  from  such  college  to  practice 
if  they  have  been  previously  licensed  in  the  foreign  state.40 

An  amendment  to  a  medical  practice  act  provided  that  regular 
graduates  holding  diplomas  issued  by  any  college  of  established  repu- 
tation in  the  state  which  had  a  four-year  course  of  instruction  and  a 
standard  of  not  less  than  75  per  cent,  on  examination  would  be 
admitted  to  practice  upon  the  presentation  of  credentials  to  that  effect. 
It  would  seem  the  manifest  intention  of  this  law,  that  upon  the  pres- 
entation of  satisfactory  evidence  as  to  the  standing  of  a  college,  and 
as  to  having  pursued  a  four-year  course  of  study,  to  create  an  exemp- 
tion in  favor  of  such  applicants.  Hence,  a  graduate  who  holds  a 
diploma  from  a  school  with  a  four-year  course  but  who  only  actually 
studied  three  years  himself,  that  being  the  time  required  at  the  time 
he  matriculated,  would  not  be  entitled  to  the  exemption.  Nor  would 
such  an  applicant  be  entitled  to  a  license  to  practice  merely  on  the 
presentation  of  his  diploma  and  without  having  taken  the  examination 
as  required  by  law.41 

A  statute  provided  that  it  should  not  apply  to  any  student  who  had 
matriculated  in  a  medical  school  prior  to  a  given  date  and  that  it 
should  be  the  duty  of  the  board  on  receipt  of  a  fee  from  such  student 


39.  State  v.  Mcintosh,  205  Mo.  589. 

40.  Boucher  v.  State,  19  R.  I.  366. 

41.  Moore  v.  Napier,  64  S.  C.  564. 


147 

to  issue  him  a  license  on  the  presentation  of  his  diploma.  Under  such 
facts  and  under  the  law  a  board  must  simply  determine,  did  any  given 
applicant  matriculate?  If  the  weight  of  the  evidence  is  in  the  affirma- 
tive the  board  has  no  discretion  and  must  issue  a  license. 4- 

A  physician  who  has  registered  his  diploma  and  certificate  under 
a  law,  and  who  was  thereby  entitled  to  practice  under  that  law  would 
fall  within  the  exception  of  a  subsequent  law,  even  though  a  law  ad 
interim  might  apparently  seem  to  render  such  registration  ineffective. 
For  a  legislature  can  restore  the  efficacy  of  such  registration  by  the 
later  law  through  an  express  provision.  If  this  be  done,  and  if  there 
be  no  actual  revocation  then  the  physician  is  entitled  to  practice.43 

§  66. — Registration  of  Licenses  as  a  Condition  Precedent 
The  registration  of  licenses  is  in  many  states  by  law  construed 
a  condition  precedent  to  the  right  to  practice  medicine.  The  pres- 
entation of  diplomas  and  the  passing  of  examinations  are  made  con- 
ditions precedent  to  the  issuance  of  licenses.  The  license  having  been 
issued,  their  registration  in  the  county  in  which  the  physician  resides 
or  has  his  principal  place  of  business  is  made  a  condition  precedent 
to  the  right  to  actually  engage  in  practice.44 

When  an  act  provides  that  there  must  be  a  registration  of  all  physi- 
cians in  the  county  of  their  respective  residences,  and  that  after  a  fixed 
date  it  would  be  unlawful  to  practice  without  so  registering,  it  would 
seem  to  be  mandatory  that  such  a  provision  be  complied  with.  Gen- 
erally speaking  it  appears  to  be  absolutely  essential  to  comply  spe- 
cifically with  such  provisions  prior  to  any  attempt  to  practice 
medicine.45 

Should  a  physician  see  fit  to  change  his  residence  from  one  county 
to  another,  it  would  seem  incumbent  upon  him  to  again  register  his 
license  in  the  county  to  which  he  has  removed  prior  to  any  attempt 
to  engage  generally  in  practice  therein.  That  is,  once  registering 
would  not  seem  sufficient  under  some  statutes,  should  a  physician  see 
fit  to  change  his  residence.  Since  such  provisions  are  for  the  general 
protection  of  the  public,  it  would  seem  to  follow  that  they  are  man- 
datory.    It  is  not  essential,  though  it  would  seem,  that  a  physician 


42.  State  v.  Adcock,  206  Mo.  550. 

43.  State  v.  Carson  (Mo.),  132  S.  W.  587. 

44.  Richardson  v.  State,  47  Ark.  562. 
Mayfield  v.  Nale,  26  Ind.  App.  240. 
Commonwealth  v.  Driscoll,  93  Ky.  393. 
Marshall  v.  State,  56  Tex.  Cr.  Rep.  295. 
Rielly  v.  Collins,  16  Colo.  App.  280. 

45.  Commonwealth  v.  Driscoll,  93  Ky.  393. 


148 

register  in  each  county  in  which  he  intends  to  practice.  That  is,  if 
a  physician  be  duly  registered  in  the  county  in  which  he  maintains 
a  bona  fide  residence,  he  would  have  a  complete  defence  to  a  charge 
of  failure  to  register,  should  he  chance  to  be  indicted  or  the  like,  for 
practicing  in  a  county  in  which  he  has  not  registered  and  does  not 
reside.  Having  registered  in  the  county  of  his  residence  a  physician 
is  entitled  to  practice  in  the  adjacent  counties  or  throughout  the  state, 
without  further  registration,  unless  he  changes  his  residence  to 
another  county.46 

The  requirement  of  a  recordation  of  a  certificate  or  license  to 
practice  medicine  it  would  seem  is  not  always  mandatory.47  As  to 
whether  or  no  a  statute  is  mandatory  as  respects  the  prior  registra- 
tion would  frequently  seem  to  be  decided  by  a  provision  which  pre- 
cludes any  recovery  for  services  rendered  prior  to  a  recordation.  But 
a  court  will  not,  it  would  seem,  refuse  to  allow  a  recovery  unless  the 
statute  is  specific  in  this  regard.48 

A  physician  should  not  be  precluded  from  a  recovery  when  he  has 
failed  to  register,  or  has  done  so  imperfectly  through  misunderstand- 
ing or  unintentional  omission,  but  in  such  cases,  there  should  be  a 
statutory  provision  as  in  New  York,  under  which  the  physician  may 
validate  his  imperfect  registration,  and  that  such  validation  should 
be  in  effect  as  from  the  original  date  of  issuance  of  the  license.  Such 
validation  could  be  retroactive  in  effect  and  legalize  any  prior  prac- 
tice, so  that  collection  might  be  enforced  therefor.49 

§   67. — Persons  Who   Have  Failed  to   Perform   the   Condition 

Precedent 
As  we  have  already  seen,  it  is  essential  that  condition  precedent 
be  performed  in  full  by  all  persons  prior  to  their  attempting  to  prac- 
tice medicine.  Many  persons  attempt  to  evade  the  law  by  claiming 
they  belong  to  certain  so-called  sects  or  schools  which  purport  to 
treat  illness  and  disease  by  any  other  methods  than  those  employed  by 
the  usual  practitioner.  Among  such  schools  are  to  be  found  the 
osteopath,  Christian  Scientist  and  the  like,  but  by  the  majority  of  the 
courts  it  has  been  generally  held  incumbent  upon  such  practitioners 


46.  Mayfield  v.  Nale,  26  Ind.  App.  240. 
Murray  v.  Williams,  120  Ga.  63. 
Jones  v.  State  (Ga.),  69  S.  E.  315. 
Parson  v.  State,  53  Tex.  Cr.  Rep.  334. 

47.  Rielly  v.  Collins,  16  Colo.  App.  280. 

48.  Mayfield  v.  Nale,  26  Ind.  App.  240. 
Murray  v.  Williams,  121   Ga.  63. 

Rielly  v.  Collins,  16  Colo.  App.  28. 

49.  Ottaway  v.  Lumsden,  172  N.  Y.  129,  Sec.  7. 


149 

to  conform  to  the  law,  and  secure  a  license,  else  they  will  be  held 
liable  for  attempting  to  practice  without  a  license.50 

An  osteopath  may  not  practice  medicine  without  obtaining  a  cer- 
tificate from  the  State  Board  of  Health,  as  he  practices  medicine  within 
the  meaning  of  the  law,  and  is  not  exempt  therefrom  by  reason  of 
not  using  drugs  or  performing  surgical  operations  or  the  like.  Such 
laws  are  not  prohibitory  except  in  regard  to  those  who  are  not  licensed 
pursuant  to  the  law  to  practice  the  art  of  healing.51 

A  Christian  Scientist  may  not  engage  in  his  system  of  healing, 
without  first  obtaining  a  license  as  required  by  law,  as  he  is  practicing 
medicine  within  the  meaning  of  the  statute.  He  exercises  the  art  of 
healing  for  a  compensation,  whether  it  be  exacted  as  a  fee  or  as  a 
gratuity,  and  hence  the  system  cannot  be  classed  as  an  act  of  worship, 
nor  as  the  performance  of  a  religious  duty.52  The  practitioners  of  this 
sect  should  therefore  it  would  seem  be  held  amenable  to  the  law. 

Magnetic  treatment  is  the  practice  of  medicine  and  persons  using 
that  system  must  conform  to  the  law  and  secure  a  license  prior  to 
any  attempt  to  engage  therein.  No  method  of  attempting  to  heal  the 
sick,  however  occult,  is  prohibited,  nor  is  any  one  excluded  from  the 
profession.  The  law  simply  requires  that  all  attain  a  reasonable 
efficiency  in  certain  fundamental  subjects  essential  to  a  thorough 
grounding  in  the  medical  profession.  The  object  is  not  to  make  any 
particular  method  unlawful,  but  to  protect  the  community  from  the 
evils  of  empiricism.53 

The  Rhode  Island  law  of  1895,  relative  to  the  practice  of  medicine, 
provides  that  no  itinerant  doctor  may  register  or  practice  medicine 
in  any  part  of  the  state.  Under  this  law  a  physician  who  makes  a 
specialty  of  catarrh,  and  has  a  main  office  in  a  certain  city,  but  who 


50.  Little  v.  State,  60  Neb.  749. 
State  v.  Buswell,  40  Neb.  158. 
Parker  v.  State,  159  Ind.  211. 
Evans  v.  Board,  19  R.  I.  312. 
State  v.  Taylor,  106  Minn.  218. 
Boone  v.  Taylor  (Tex.),  120  S.  W.  446. 

51.  Little  v.  State,  60  Neb.  749. 
Melville  v.  State  (Ind.),  89  N.  E.  490. 
Ex  parte  Collins,  57  Tex.  Cr.  Rep.  2. 
State  v.  Littering,  61  Ohio  39. 
State  v.  Gravett,  65  Ohio  289. 

State  v.  McKnight,  139  N.  C.  717. 
State  v.  Biggs,  133  N.  C.  729. 
State  v.  Herring,  70  N.  J.  L.  34. 

52.  State  v.  Buswell,  40  Neb.  158. 
State  v.  Marble,  72  Ohio  St.  21. 
State  v.  Mylod,  20  R.  I.  643. 

53.  Parks  v.  State,  159  Ind.  211. 
State  v.  Heath,  125  Iowa  585. 


150 

travels  from  place  to  place  to  practice,  notifying  his  patients  by 
advertising  in  the  daily  papers  as  to  what  time  he  will  be  in  the  town, 
and  in  what  hotel  he  will  receive  them,  is  an  itinerant  physician  and 
would  be  precluded  from  pursuing  his  profession.54 

All  states,  however,  do  not  absolutely  preclude  the  itinerant  physi- 
cian from  practicing,  resorting  simply  to  a  means  of  restraint  and 
regulation  to  control  that  branch  of  the  medical  profession.  In  such 
states,  however,  it  is  made  essential  that  these  practitioners  secure  a 
license  and  otherwise  qualify  themselves  as  would  a  regular  practi- 
tioner using  almost  the  same  system  of  qualification.  These  prac- 
titioners are  unreliable,  often  obtaining  money  with  a  total  lack  of 
consideration.  They  differ  from  the  regular  practitioner,  in  that,  the 
latter  has  an  established  place  of  business  and  is  known  to  the  general 
public,  having  thereby  a  reputation  to  maintain,  while  the  itinerant 
may  be  utterly  irresponsible  in  this  regard,  thereby  working  great 
injury.55 

A  person  duly  licensed  to  practice  medicine  is  not  ipso  facto 
barred  from  practicing  dentistry  under  the  language  of  any  statute 
without  a  specific  statement  to  that  effect.  If  a  physician  is  qualified 
to  practice  medicine,  generally  he  is  qualified  to  practice  dentistry. 
The  work  of  the  dentist  is  included  in  that  of  the  physician,  but  not- 
withstanding this,  and  while  the  physician  by  his  preparation,  may 
be  able  to  practice  dentistry,  yet,  we  must  always  look  to  the  statute 
to  be  sure  whether  or  no  a  physician  is  precluded  from  practicing  the 
profession  of  dentistry  without  a  special  license  therefor.56 

For  the  protection  and  promotion  of  the  general  welfare  of  the 
public  at  large,  persons  not  fully  educated  in  the  science  of  medicine 
are  precluded  from  attempting  to  practice  that  profession.  Neither 
may  they  advertise  themselves  as  physicians  by  affixing  to  their  names 
titles  and  letters  commonly  used  by  the  medical  profession,  or  by 
claiming  to  be  specialists  and  using  a  term  well  known  in  the  practice 
of  medicine  and  having  a  special  meaning  therein.  Nor  would  the 
addition  of  the  word  "Osteopath"  or  "Drugless  Healer"  be  sufficient 
to  distinguish  a  case  so  as  to  allow  a  violator  to  escape  the  penalty.57 

A  person  who  is  a  mere  masseur  and  advertises  himself  as  a 
masseur,  claiming  the  ability  to  cure  all  sorts  of  diseases  is  not  by 


54.  Evans  v.  Board,  19  R.  I.  312. 

55.  Kirk  v.  State  (Term.),  150  S.  W.  83. 

56.  State  v.  Beck,  21  R.  I.  288. 
State  v.  Taylor,  106  Minn.  218. 

57.  State  v.  Yegge,  19  S.  Dak.  234. 
State  v.  Pollman,  51  Wash.  110. 


151 

law  entitled  to  pursue  his  profession,  but  must  prove  his  qualification- 
and  obtain  a  license.  This  rule  likewise  applies  to  a  person  claiming 
to  be  a  doctor  of  Neurology  or  Ophthalmology  and  others  of  a  like 
nature.58 

A  person  who  has  been  licensed  to  practice  the  branches  of  obstet- 
rics and  diseases  peculiar  to  women,  and  who  has  recently  passed 
examination  therein,  and  has  shown  qualifications  to  practice  generally, 
is  entitled  to  more  than  a  certificate  to  practice  those  branches  only, 
and  is  entitled  to  have  a  license  to  practice  generally.59 

Patent  granted  under  the  law  of  the  United  States  authorizing  the 
patentee  and  his  assignees  for  the  term  of  fourteen  years  to  make 
constant  use  and  vend  to  others  to  be  used,  a  certain  improvement  in 
the  treatment  of  certain  diseases,  simply  authorizes  the  holder  to 
make  and  sell  such  improvements  and  not  to  practice  medicine  under 
the  law  of  the  given  state.60 

A  person  who  does  not  hold  an  unrevoked  license  to  practice 
medicine  may  not  operate  properly  with  and  divide  all  remunerations 
with  another  person,  although  such  other  person  should  hold  an 
unrevoked  license  in  a  state  where  the  law  requires  all  persons  who 
desire  to  practice  to  be  licensed,  and  the  fact  that  the  unlicensed 
physician  should  practice  under  the  supervision  of  the  licensed  physi- 
cian will  not  bring  him  within  the  exemption  of  the  law.61 

§  68. — Impossibility  of  Performing  the  Condition  Precedent — 

Corporations 
From  the  practical  viewpoint  corporations  as  such  cannot  prac- 
tice medicine.  When  considered  from  the  point  of  view  of  enforc- 
ing the  law,  it  will  be  seen  that  the  corporation  cannot  apply  for  a 
license,  nor  can  it  show  good  moral  character,  file  a  diploma  and 
otherwise  show  its  qualifications  by  examinations  and  the  like.  Of 
course,  it  may  be  argued  that  its  officers  when  delegated  by  it  might 
do  this  and  in  this  way  a  corporation  might  be  said  to  practice  medi- 
cine legally.  However,  it  would  seem  that  on  grounds  of  public 
policy,  and  from  a  practical  viewpoint,  that  when  an  actual  attempt 
is  made  to  practice  medicine  through  its  agents,  or  in  any  way  what- 


58.  Newman  v.  State  (Tex.)  124  S.  W.  956. 
State  v.  Wilhite,  132  Iowa  226. 

State  v.  Heffernan,  28  R.  I.  20. 

59.  Board  v.  Taylor  (Tex.),  120  S.  W.  446. 

60.  Thompson  v.  Staats   (N.  Y.),  15  Wend.  395. 

61.  State  v.  Paul,  56  Neb.  369. 


152 

soever,  that  the  corporation  should  be  held  liable  therefor,  and  that 
ab  initio  a  corporation  is  incapable  of  practicing  medicine.62 

It  is  generally  admitted  that  a  corporation  cannot  practice  medi- 
cine inasmuch  as  it  cannot  obtain  a  license  to  do  so  and  because  of 
its  nature  per  se.  But  it  is  argued  that  such  an  organization  in  treat- 
ing disease  through  its  agents  and  in  advertising  its  willingness  to 
do  so,  is  not  practicing  medicine.  In  this  case  it  is  conceded  that 
while  a  corporation  is  in  some  sense  a  person,  and  for  many  purposes 
it  is  so  considered,  yet  it  is  not  such  a  person  that  can  be  licensed 
to  practice.  Because  it  is  impossible  to  conceive  of  an  impersonal 
entity  judging  the  nature,  character  and  symptoms  of  disease  or 
determining  the  proper  remedy  therefor.  But  members  of  the  cor- 
poration or  persons  in  its  employ  might  do  these  things,  although  the 
corporation  itself  is  incapable  of  doing  them,  as  the  qualifications  of 
a  medical  practitioner  are  personal  to  himself  and  cannot  attach  to  a 
corporation  as  such.  But  the  making  of  contracts  for  the  healing 
and  curing  of  disease  and  the  collecting  of  compensation  thereunder 
is  not  broadly  differentiated  from  practicing  medicine  per  se.  And 
hence  it  is  held  that  a  corporation  would  not  have  to  secure  a  license  to 
perform  such  acts,  as  the  making  and  enforcing  of  contracts.63 

Directly  opposed  to  this  view  is  that  a  foreign  corporation,  or 
any  corporation  for  that  matter,  whose  sole  business  is  to  enter  into 
contracts  with  physicians,  engaging  to  defend  them  in  malpractice 
suits,  is  not  in  an  insurance  business,  but  is  carrying  on  a  professional 
business  contrary  to  the  law.  This  would  seem  to  be  similar  to  the 
contract  to  treat  for  any  disease  and  to  collect  a  compensation  there- 
for. Such  contracts  it  would  seem  are  not  only  ultra  vires,  but  are 
in  direct  conflict  with  public  policy  and  generally  with  the  medical 
practice  acts  themselves.64 

And  finally  a  corporation  which  cannot  take  out  a  license  to  prac- 
tice medicine,  is  also,  it  would  seem,  prohibited  from  advertising  to 
practice  medicine  even  through  its  agents  and  employees.  Such  a 
restriction,  however,  would  not  seem  to  include  hospitals,  since  they 
are  incorporated  with  the  specific  intent  of  treating  disease  through 


62.  Institute  v.  State,  74  Neb.  40. 
State  v.  Laylin,  73  Ohio  St.  90. 
People  v.  Woodbury,  1092  N.  Y.  454. 

In  re  Cooperative  Law  Co.  (N.  Y.),  92  N.  E.  15. 

Youngstown  Park,  etc.  v.  Kessler  (Ohio),  36  L.  R.  A.  (N.  S.)  50. 

63.  Institute  v.  State,  74  Neb.  40. 

Institute  v.  Platner  (Neb.)  103  N.  W.  1079. 

64.  State  v.  Laylin,  73  Ohio  St.  90. 

In  re  Cooperative  Law  Co.  (N.  Y.),  92  N.  E.  15. 
Youngstown  Park  v.  Kessler  (Ohio),  36  L.  R.  A.  (N.  S.)  50. 


153 

their  agents,  but  such  corporations  are  subject  to  specific  laws  under 
which  corporations  in  general  could  not  be  held  liable.  The  reason 
for  the  prohibition  against  corporations  in  general  is  that  all  display 
advertising  may  be  taken  as  emanating  from  questionable  or  empirical 
sources  such  as  quacks  and  charlatans.  Hence  it  is  generally  deemed 
advisable  to  confine  all  advertising  that  is  permissible  to  those  who 
can  present  qualifications  entitling  them  to  practice  as  physicians. 
As  a  corporation  cannot  qualify  as  a  physician,  it  should  be  precluded 
from  advertising  its  willingness  to  treat  disease  unless  it  shall  be  in 
the  name  of  some  individual  who  shall  be  able  to  obtain  public  recog- 
nition as  a  physician.  And  this  it  would  appear,  is  the  object  of  such 
legislation,  viz.,  to  prohibit  advertising  to  treat  diseases,  excepting  by 
those  who  are  de  facto  qualified  to  pursue  the  medical  profession,  and 
corporations  from  their  very  nature  are  barred  from  so  doing. ,;:' 

§  69. — The  Exceptions  Under  the  Statutes 
Nearly  all  medical  practice  acts  uniformly  except  certain  persons 
under  certain  conditions   and   for  certain   reasons   from  the  general 
application  of  the  law.     It  may  be  said  that  nearly  all  acts  except 
the  following: 

1.  Commissioned  surgeons  of  the  United  States  Army  and  Navy 
and  Marine  Hospital  Service. 

2.  Physicians  and  surgeons  in  actual  consultation  from  other  states. 

3.  Persons  temporarily  practicing  under  the  supervision  of  an 
actual  medical  preceptor. 

4.  Chiropodists,  midwives,  masseurs  or  other  manual  manipulators 
who  use  no  other  means  are  frequently  excepted. 

5.  Physicians  or  surgeons  residing  on  a  border  of  a  state  and  duly 
authorized  to  practice  under  the  laws  of.  such  adjacent  state  and 
whose  practice  extends  into  the  limits  of  a  state  but  not  so  to  permit 
them  to  maintain  an  office  in  the  state. 

6.  Persons  rendering  gratuitous  service. 

7.  Laws  frequently  exempt  those  who  are  legally  licensed  to  prac- 
tice at  the  passage  of  a  given  law. 

These  several  exceptions  and  exemptions  have  caused  a  vast 
amount  of  litigation  not  only  in  determining  their  constitutionality  but 
in  large  part  in  determining  just  who  shall  fall  within  these  several 
classes  and  so  be  freed  from  the  general  burdens  of  the  law.66 


65.  People  v.  Woodbury,  192  N.  Y.  454. 

66.  Scholle  v.  State,  90  Md.  729. 
Watson  v.  State,  105  Md.  650. 
Ex  parte  Spinney,  10  Nev.  323. 
People  v.  Phippen,  70  Mich.  6. 


154 

It  would  seem  to  be  the  general  rule  that  all  laws  consider  those 
already  engaged  in  the  practice  as  sufficiently  qualified  to  continue 
therein  without  a  compliance  with  the  new  enactments  as  regards 
examination  and  the  like.  This  would  seem  to  be  on  the  basis  that 
those  who  have  been  engaged  in  the  practice  have  been  already 
stamped  with  the  public  approbation  or  disapprobation,  and  this  would 
seem  of  itself  to  be  a  sufficient  test  of  competency.67 

But  practice  for  seven  years  prior  to  the  passage  of  an  act,  together 
with  graduation  from  a  reputable  college  and  an  internship  in  a  hos- 
pital would  not  be  sufficient  to  excuse  a  failure  to  obtain  a  license 
when  a  person  has  actually  had  ample  opportunity  to  secure  such  and 
has  in  fact  been  granted  a  temporary  license  until  such  time  as  he 
could  completely  comply  with  the  full  requirements  of  the  law.68 

Although  those  who  were  practicing  prior  to  the  passage  of  a  given 
law  are  excepted  from  the  broad  requirements  of  the  law,  neverthe- 
less they  too  must  produce  evidence  as  to  their  ability  and  the  like 
in  general.  That  is,  it  may  be  required  that  such  a  practitioner  shall 
produce  his  license  which  was  granted  under  a  prior  law  or  he  shall 
file  his  diploma  or  the  like.  In  all  cases  it  would  seem  some  such 
credentials  may  be  demanded.  The  New  Hampshire  law  provided 
that  every  person  who  was  a  practitioner  of  medicine  and  surgery  in 
that  state  prior  to  the  passage  of  the  law  in  question  should  upon 
satisfactory  proof  thereof  to  the  regent,  and  payment  of  $1  fee,  be 
entitled  to  registration.  An  applicant  furnished  statements  from 
three  residents,  that  he  had  attended  them  as  a  physician  prior  to  the 
passage  of  the  act  in  question,  together  with  a  certificate  of  the  city 
clerk  that  he  had  certified  to  a  death  on  a  certain  date.  But  such 
credentials  were  deemed  insufficient  because  the  applicant  did  not 
show  that  he  was  still  practicing  as  a  physician  and  surgeon  at  the 
time  of  his  application.  It  would  seem  a  fair  construction  of  such 
language  that  only  those  physicians  and  surgeons  who  were  actually 
in  practice  in  the  state  when  the  act  was  passed  would  be  entitled 
to  registration.69 

Frequently  it  is  required  that  these  practitioners  who  have  been 
practicing  prior  to  the  passage  of  a  given  act  must  show  that  they 
have  acquired  a  reputation  as  a  bona  fide  physician  in  the  community 


67.  State  v.  Call,  121  N.  C.  646. 
Arwine  v.  Board,  151  Cal.  499. 
People  v.  Langdon,  219  111.  189. 
Williams  v.  People,  121  111.  84. 
Eastman  v.  State,  109  Ind.  282. 

68.  Bohn  v.  Lowry,  77  Miss.  424. 

69.  Hart  v.  Folson,  70  N.  H.  213. 


155 

in  which  they  are  actually  pursuing  their  work.  Under  such  a  require- 
ment a  physician  who  has  been  practicing  but  one  or  two  years  prior 
to  the  passage  of  a  certain  act  and  had  not  been  very  successful 
therein,  but  had  been  compelled  to  engage  in  other  business  at  the 
same  time,  would  not  have  acquired  such  a  reputation  and  would  not 
therefore  be  entitled  to  a  certificate  to  practice  without  further  evi- 
dence of  qualification.70 

Some  laws  simply  make  the  prior  practice  evidence  of  qualification 
which  shall  permit  such  applicants  to  an  examination.  Under  such 
laws  therein  the  mere  fact  that  a  physician  has  practiced  for  any 
length  of  time  prior  to  a  given  law  will  not  permit  him  to  continue 
in  such  profession  without  a  full  compliance  with  the  provisions  of 
the  law  as  enacted.71 

It  has  frequently  been  attempted  to  have  the  exemptions  as  to 
prior  practice  construed  to  read  that  practice  at  any  time  either  prior 
or  subsequent  to  the  passage  of  a  given  law  will  constitute  a  com- 
pliance with  that  law.  But  a  person  who  has  practiced  for  the  required 
period  subsequent  to  the  passage  of  the  now  law  cannot  be  said  to 
have  complied  with  its  provisions,  inasmuch  as  he  has  been  practic- 
ing contrary  to  the  law.  Any  ruling  by  a  court  that  such  practice  was 
legitimate  would  be  in  effect  validating  an  illegal  act,  which  would  be 
contrary  to  all  law.  Hence,  it  may  be  said  that  continuous  practice 
for  any  length  of  time  in  violation  of  the  law  after  an  act  has  been 
passed  confers  no  right  or  authority  on  any  practitioner,  and  it  would 
constitute  no  defense  to  a  prosecution  for  a  violation  of  such  an  act 
to  prove  that  the  person  charged  with  unlawfully  practicing  medicine 
in  violation  of  its  provisions  had  been  continuously  engaged  in  the 
practice  of  medicine  in  any  given  state  or  in  any  foreign  state.  And 
further  practice  in  a  foregn  state  cannot  be  said  to  be  not  in  violation 
of  the  law  in  the  given  state,  for  in  absence  of  proof  to  the  contrary 
it  is  presumed  that  the  laws  of  the  two  states  are  identical.  A  person 
must  show  that  he  has  been  practicing  legally.  It  would,  therefore, 
devolve  upon  a  person  to  produce  such  evidence  as  will  tend  to  show 
that  he  has  complied  with  the  law  in  all  respects.72 


70.  Paquin  v.  State,  19  R.  I.  365. 

71.  State  v.  Vandersluis,  42  Minn.  129. 

72.  State  v.  Wilson,  62  Kan.  621. 
Higgins  v.  State,  104  Pac.  953. 
State  v.  Taylor,  140  Iowa  138. 
State  v.  Miller,  138  Iowa  28. 
State  v.  Pennoyer,  65  N.  H.  113. 
Commonwealth  v.  Rice,  93  Ky.  393. 
State  v.  Bair,  112  Iowa  466. 


156 

A  physician  who  was  a  resident  of  a  given  state  and  who  had 
been  engaged  in  the  practice  of  his  profession  under  a  prior  law  and 
had  complied  with  all  the  provisions  of  a  subsequent  law  was  refused 
a  license  by  the  board  on  the  ground  that  they  could  not  recognize 
his  school.  But  such  physician  came  within  the  exemption  of  the 
subsequent  law  and  was  entitled  to  a  license.  For  under  the  law  the 
board  was  not  impowered  to  question  the  good  standing  of  his  school. 
They  could  not  ignore  the  plain  provisions  of  the  law  and  thereby 
make  a  criminal  of  a  citizen  who  was  legally  engaged  in  pursuing  his 
business.73 

A  statute  required  all  persons  engaged  in  or  who  wished  to  begiii 
the  practice  of  medicine  to  make  application  for  a  certificate  while 
a  mandatory  action  omitted  the  former  class,  thus  apparently  limit- 
ing the  law  to  beginners.  This  provision  would  seem  to  be  taking  for 
granted  that  those  then  practicing  were  legally  registered  and  need 
not  again  make  application.  But  if  any  person  were  not  legally 
registered  then  with  respect  to  the  amended  law  such  a  person  would 
be  but  a  beginner  and  must  make  application,  not  being  already  a 
lawful  practitioner.74 

A  law  provided  that  any  one  who  treats  the  sick  may  register  his 
diploma  and  the  proviso  was  attached  which  would  seem  to  say  that 
such  a  registration  is  on  either  one  of  two  conditions,  to  wit: 

First  that  the  person  so  registering  can  produce  satisfactory  evi- 
dence of  having  been  legally  engaged  in  practice  prior  to  the  passage 
of  the  said  act,  and  is  a  graduate  of  a  legally  incorporated  college,  or, 
second,  must  produce  evidence  of  having  been  in  continuous  prac- 
tice in  one  locality  in  the  state  for  two  years  last  past.  Taking  this 
view  of  the  law  it  would  seem  to  say  that  the  person  who  has  been 
practicing  for  two  years  must  register  his  diploma  and  not  that  the 
having  practiced  in  one  locality  was  of  itself  sufficient  together  with 
the  evidence  thereof.  However,  the  law  was  construed  that  the  two 
years  practice  was  sufficient  and  that  such  a  person  would  be  entitled 
to  a  license  whether  or  not  he  had  ever  had  a  diploma.  Thus  the 
proviso  was  construed  as  an  exception  and  not  a  condition  to  the  first 
part  of  the  section.  And  again,  by  the  language  of  this  same  section 
a  person  who  had  been  engaged  in  practice  for  two  years  in  one 
locality  need  not  have  been  legally  engaged  in  such  practice.  This 
conclusion  is  reached  from  the  fact  that  the  first  clause  of  the  proviso 


73.  State  v.  Cooper  (Ida.),  81  Pac.  374. 

74.  Hooper  v.  Batdorff,  141  Mich.  353. 
Metcalf  v.  Board,  123  Mich.  661. 


157 

refers  specifically  to  those  who  were  legally  engaged  while  the  second 
clause  omits  the  word  "legally."  This  seems  to  imply  that  the  legis- 
lature intended  licensing  the  second  class,  even  though  they  had 
violated  the  then  law.7"' 

No  person  has  a  vested  right  to  practice  in  any  given  state  merely 
through  having  practiced  in  that  state  prior  to  a  certain  date.  A 
person  who  had  left  a  state  prior  to  the  passage  of  a  given  law  must 
on  returning  thereto  give  evidence  of  his  qualifications  and  fitness  to 
practice,  and  must  be  judged  by  the  law  in  force  at  the  time  he  so 
returns  before  he  will  be  authorized  to  engage  in  practice  of  his  pro- 
fession and  reap  rewards  therefrom.  There  is  no  reason  why  he 
should  not  comply  with  the  conditions  imposed  by  the  law  in  force. 
There  is  thereby  no  deprivation  of  any  vested  right  for  there  can  be 
no  such  thing  as  a  vested  right  in  the  practice  of  medicine  and  sur- 
gery. In  such  provisions  the  law  is  simply  providing  for  its  proper 
administration  and  regulation  of  the  practice.  It  is  simply  requiring 
that  all  must  give  evidence  of  their  fitness  and  skill  before  they  can 
be  authorized  to  pursue  the  medical  profession.78 

The  mere  fact  that  a  person  has  practiced  prior  to  the  passage  of 
a  given  law  does  not,  as  has  been  said,  ipso  facto  qualify  him  to 
pursue  such  practice.  But  a  board  is  entitled  to  examine  into  his 
qualifications  to  practice,  especially  should  they  have  specific  evidence 
of  his  lack  of  educational  qualifications.  It  would  seem  that  a  person 
cannot  claim  as  a  matter  of  law  that  he  has  a  right  to  a  certificate 
based  on  his  prior  practice,  and  that  under  the  law  the  board  has 
no  right  to  inquire  as  to  his  competency.  It  would  seem  that  the  law 
need  not  specifically  give  the  authority  to  examine  into  the  com- 
petency of  such  persons,  but  that  the  right  so  to  do  would  come  from 
implication.  For  a  board  may  after  granting  a  certificate  inquire  as 
to  a  person's  competency  and  if  incompetent  revoke  a  certificate. 
Hence,  it  would  seem  to  follow  that  the  board  could  refuse  to  grant  a 
license  for  a  want  of  competency,  as  the  question  of  competency  is 
of  the  very  spirit  and  purpose  of  such  laws.  It  would  be  an  unreason- 
able and  impolitic  construction  to  hold  that  upon  such  an  application 
with  the  board  in  possession  of  facts  to  justify  an  inquiry  as  to  the 
competency  of  the  board  that  it  must  grant  a  certificate  and  at  once 
proceed  to  revoke  it.    Before  holding  to  that  view  the  language  should 


75.  In  re  Christensen  (Wash.)   109  Pac.  1040. 
Gosnell  v.  State,  52  Ark.  228. 
Sherburne  v.  Board  (Ida.),  88  Pac.  762. 

76.  State  v.  Davis,  194  Mo.  485. 
Dodge  v.  State,  17  Neb.  140. 


158 

be  clear  and  unmistakable.  It  would  seem  that  the  legislative  pur- 
pose is  best  subserved  by  holding  that  a  board  upon  application  has 
the  right  to  inquire  as  to  the  competency  of  such  applicant,  and  that 
the  established  facts  of  prior  practice  would  be  simply  prima  facie  evi- 
dence of  competency  which  may  be  overcome  by  a  clear  showing  of 
palpable  incompetency.  Under  such  circumstances  a  physician  could 
not  claim  exemption  under  the  law  and  would  be  liable  criminally  for 
any  violation  of  the  law.77 

An  applicant  from  a  foreign  state  who  is  a  graduate  of  a  reputable 
college  and  is  duly  licensed  in  practice  in  that  state  would  not  on  those 
facts  alone  be  entitled  to  practice  under  the  law  of  a  given  state.  He 
may  be  entirely  excluded  from  practice  in  that  state,  or  it  may  be 
required  that  he  make  a  proper  showing  as  to  his  competency  and  that 
he  apply  for  a  certificate  to  practice  from  a  local  board.  The  fact 
that  he  may  arbitrarily  have  been  refused  a  license  would  not  entitle 
him  to  practice  without  the  license  or  other  showing.  It  is  essential 
that  he  comply  with  the  law  in  all  its  details.  Practice  for  any 
specified  period  in  a  foreign  state  is  of  no  avail,  nor  would  simply 
a  showing  of  good  reputation  and  a  diploma  from  a  legally  organized 
college  necessarily  entitle  him  to  anything  more  than  an  opportunity 
to  take  an  examination  under  the  laws  of  the  state  to  which  he  has 
removed.  It  is  on  the  basis  of  comity  that  such  persons  from  a  foreign 
state  are  permitted  to  practice  at  all  under  the  laws  of  any  state  to 
which  they  may  remove.  That  is,  it  is  entirely  at  the  discretion  of  any 
given  state  as  to  whether  or  no  they  will  permit  physicians  from  a 
foreign  state  to  practice  within  their  jurisdiction.  Their  laws  in  this 
regard  may  be  as  stringent  as  they  may  see  fit,  providing  only  that 
due  consideration  is  given  as  to  their  constitutionality.78 

As  has  been  said,  physicians  are  allowed  to  practice  under  the 
laws  of  a  given  state  on  removing  thereto  from  some  foreign  state 
through  comity.  They  have  been  subjected  to  a  suitable  test  in  their 
own  state  and  oftentimes  are  simply  called  into  another  state  tempo- 
rarily by  a  properly  registered  local  physician.  He  alone  has  the 
power  to  extend  his  courtesy  to  a  non-resident.  A  very  high  regard 
may  be  placed  upon  their  opinions  as  to  the  ability  of  such  a  con- 
sulting physician.     No  question  can  therefore  be  made  as  to  their 


77.  State  v.  Mosher,  78  Iowa  321. 

78.  Craig  v.  Board,  12  Mont.  203. 

Stone  v.  State,  48  Tex.  Cr.  Rep.  114.  - 
Hollis  v.  Board,  82  S.  C.  230. 
In  re  Harold  (Wash.),  109  Pac.  1043. 
Board  v.  Fowler,  50  La.  Ann.  1358. 
Webster  v.  Board,  130  Ky.  191. 


159 

right  to  practice.  This  is  of  course  somewhat  different  from  the 
physician  who  actually  removes  to  a  given  state  with  intention  of 
taking  up  permanently  a  residence  therein.  As  to  whether  or  no  they 
shall  be  permitted  to  practice  is  more  or  less  within  the  discretion 
of  the  local  board  of  examiners.  The  board,  however,  is  not  given 
any  arbitrary  power  therein.  But  supposing  the  board  has  acted  in 
all  fairness  it  is  left  more  or  less  to  its  good  judgment  as  to  whether 
or  no  such  foreign  physicians  may  practice  within  the  confines  of  any 
given  state.79 

§  70. — Conditions  Subsequent — Unprofessional  Conduct 
a.  in  general 

Just  as  the  applicant  for  a  license  to  practice  medicine  must  per- 
form all  the  conditions  precedent  prior  to  obtaining  any  rights  under 
the  law,  so  is  he  likewise  required  to  perform  all  conditions  subse- 
quent lest  he  be  divested  of  whatever  privilege  he  may  have  acquired 
under  the  law.80 

That  is  to  say,  the  performance  of  the  conditions  precedent  must 
be  prior  to  any  vesting  of  whatever  right  there  may  be  to  pursue  the 
practice  of  medicine,  while  a  failure  to  recognize  the  conditions  sub- 
sequent serves  to  divest  the  practitioner  of  his  right  or  privilege  to 
continue  in  that  pursuit  to  whatever  extent  that  may  exist.  It  is 
said  the  law  abhors  a  forfeiture.  Yet,  it  would  seem  that  all  doubts, 
if  there  be  any,  as  to  the  right  of  government  to  enforce  the  conditions 
subsequent,  under  the  several  medical  practice  acts,  have  been  resolved 


79.  State  v.  Van  Doran,  109  N.  C.  864. 

United  States  v.  Curtis  (D.  C),  38  Wash.  L.  R.  396. 

80.  Hawker  v.  People,  170  U.  S.  189. 
Board  v.  Eisen  (Ore.),  123  Pac.  52. 
Meffert  v.  Board,  66  Kan.  710. 
State  v.  Board,  32  Minn.  324. 
Spurgeon  v..  Rhodes,  167  Ind.  1. 

State  v.  McCrary  (Ark.),  130  S.  W.  544. 

Morse  v.  Board  (Tex.),  122  S.  W.  466. 

State  v.  Roy,  22  R.  I.  538. 

Kennedy  v.  Board,  145  Mich.  241. 

Rose  v.  Baxter,  81  Ohio  St.  522,  7  Nisi  Prins.   (N.  S.)   132. 

People  v.  McCoy,  125  111.  289. 

Smith  v.  Board  (Iowa),  117  N.  W.  1116. 

France  v.  State,  57  Ohio  1. 

Fort  v.  City,  87  Ark.  400. 

Aiton  v.  Board  (Ariz.),  114  Pac.  962. 

People  v.  Apfelbaum   (111.),  95  N.  E.  995. 

But  see  also 

Matthews  v.  Murphy,  23  Ky.  750. 

Czarra  v.  Board,  25  App.  D.  C.  443. 

Chenoweth  v.  State   (Colo.),  135  Pac.  771. 

Graeb  v.  State  (Colo.),  135  Pac.  776. 


160 

affirmatively.  For  under  the  power  of  "continuing  regulation"  gov- 
ernment may  supervise  the  daily  relation  between  physician  and 
patient  by  means  of  proper  legislation  even  after  the  vesting  of  the 
so-called  right  to  pursue  the  practice  of  medicine.sx 

What  are  then  these  conditions  subsequent  which  thus  serve  to 
delimitate  the  physician's  sphere  of  action?  The  acts  or  specified 
events,  the  happening  of  which  would  seem  to  abrogate  a  so-called 
right  may  be  generally  grouped,  as  is  the  case  in  most  statutes,  under 
the  term  "Unprofessional  and  dishonorable  conduct."  Inasmuch  as 
this  term  has  been  held  wanting  in  definitude  by  several  courts  it  has 
been  attempted  to  be  somewhat  more  specific  in  not  a  few  of  the  more 
recent  statutes.  Consequently,  in  many  states  there  will  be  found  set 
forth  certain  specified  acts  which  go  to  constitute  the  desideratum  of 
"unprofessional  and  dishonorable  conduct."  Even  in  such  jurisdic- 
tions, however,  it  has  been  found  necessary  to  close  these  decalogues 
with  the  words  "and  in  any  other  acts  of  unprofessional  and  dis- 
honorable conduct  which  tend  to  deceive  and  defraud  the  public."82 

It  has  been  well  said  that  human  ingenuity  could  not  pass  a  law 
which  would  set  forth  every  conceivable  act  which  might  be  deemed 
unprofessional.  Nor  in  fact  would  it  seem  necessary,  for  unless  it 
be  permissible  to  use  freely  general  language  legislation  in  many 
instances  would  not  accomplish  all  that  is  desired,  nor  afford  the  full- 
est protection  to  the  public,  because  of  this  very  impossibility  of 
enumerating  in  detail  every  separate  and  distinct  act  intended  to  be 
prohibited.83 

A  recent  medical  practice  act  enumerated  three  causes  which  were 
thereby  constituted  conditions  subsequent  for  divesting  the  actor  on 
the  happening  thereof.    These  were: 

1.  Fraud  in  obtaining  or  endeavoring  to  obtain  a  license. 

2.  Conviction  of  a  crime  of  the  grade  of  felony,  or  involving  moral 
turpitude,  or  aiding  or  abetting  the  commission  of  an  abortion. 


81.  Hawker  v.  People,  170  U.  S.  189. 
Reetz  v.  Michigan,  188  U.  S.  505. 
France  v.  State,  57  Ohio  1. 

82.  Czarra  v.  Board,  25  App.  D.  C.  443. 

Matthews  v.  Murphy,  23  Ky.  750,  holding  that  the  term  "unprofessional"  is 

insufficient. 
Contra 

Morse  v.  Board  (Tex.),  122  S.  W.  446. 
Kennedy  v.  Board,  145  Mich.  241. 

Rose  v.  Baxter,  81  Ohio  St.  522,  7  Nisi  Prins.  (N.  S.)  132. 
Aiton  v.  Board   (Ariz.),  114  Pac.  962. 

83.  Morse  v.  Board  (Tex.),  122  S.  W.  446. 
People  v.  Apfelbaum  (111.),  95  N.  E.  995. 


161 

3.  Other  grossly  unprofessional  or  dishonorable  conduct  of  a  char- 
acter likely  to  deceive  or  defraud  the  public,  or  for  habits  of  intem- 
perance or  drug  addictions  calculated  to  endanger  the  lives  of  patients. 
But  even  in  this  attempt  at  enumeration  it  would  apparently  seem  that 
the  ingenuity  of  the  legislator  was  exhausted,  for  in  the  third  cause 
we  are  referred  to  "unprofessional  conduct."84 

To  this  list  there  has  been  added  in  many  states  other  causes, 
such  as : 

1.  Advertising  the  cure  of  venereal  diseases,  which  is  objectionable 
as  being  subversive  of  the  public  morals  and  as  constituting  an  oppor- 
tunity for  fraud. 

2.  Advertising  the  cure  of  chronic  complaints  and  of  various  incur- 
able diseases.  This  is  also  objectionable,  because  of  the  fraud  preva- 
lent with  such  practices. 

From  an  examination  of  these  laws  it  would  seem  that  there  is 
no  desire  to  prohibit  the  attempt  to  treat  or  care  for  venereal  and 
chronic  diseases.  But  the  provision  is  directed  against  a  physician 
who  makes  an  unnecessary  display  of  this  profession,  for  fraud  and 
deception  are  too  simple  a  matter  for  the  charlatan  and  empiricist, 
considering  the  peculiar  relationship  of  physician  and  patient  and  the 
usual  condition  of  most  patients.  It  is  therefore  submitted  that  this 
would  seem  the  basis  for  all  these  conditions  subsequent. 

The  law  therefore  requires  the  obtaining  of  a  license  as  an  inter- 
position on  the  part  of  government  in  behalf  of  the  weak  and  oppressed 
and  to  aid  those  who  are  incapable  of  guarding  their  own  interests. 
It  is  in  the  furtherance  of  these  ends  then  that  the  legislative  branch 
of  government  is  to  be  found  attempting  to  comply  with  the  sug- 
gestions of  the  courts  by  making  the  term  "unprofessional  conduct" 
as  comprehensive  as  possible.85 

The  term  "unprofessional  conduct"  will  hereinafter  be  used  with 
two  shades  of  meaning,  in  a  special  sense  as  found  in  many  of  the 
statutes  to  cover  specific  acts  as  therein  enumerated,  and  in  a  more 
general  sense  as  having  reference  to  any  other  acts  not  particularly 


84.  Texas  Session  Laws,  1907. 

85.  Board  v.  Ross,  191  111.  87. 
State  v.  Chapman,  34  Minn.  387. 
Hewitt  v.  Board,  148  Cal.  590. 
But  see 

Chenoweth  v.  State  (Colo.),  135  Pac.  771. 
Graeb  v.  State  (Colo.),  135  Pac.  776. 
Raaf  v.  Board,  11  Ida.  707. 
Matthews  v.  Murphy,  23  Ky.  750. 
Czarra  v.  Board,  25  App.  D.  C.  443. 
State  v.  Smith,  138  Wis.  53. 


162 

set  forth.  Generally  the  term  will  be  found  used  in  the  first  sense 
and  always  with  the  idea  of  its  being  a  condition  subsequent  giving 
grounds  for  a  revocation  of  a  license. 

B.    GROUNDS   FOR  THE  REVOCATION   OF  A  LICENSE 

i.  Fraud  in  Procuring  License 

It  would  seem  fundamental  that  fraud  and  perjury  should  consti- 
tute unquestionable  grounds  for  the  revocation  of  a  license.  Indeed, 
so  incontrovertible  would  this  position  appear,  that  one  court  has 
said  obiter  it  would  be  slow  to  hold  that  there  was  no  authority  to  set 
aside  a  certificate  for  fraud  even  in  the  absence  of  a  statute.86 

What  then  should  be  the  position  of  a  board  or  court  when  addi- 
tionally fortified  by  statutory  mandate.87 

The  use  of  notes  and  memoranda  in  answering  examination  ques- 
tions may  be  taken  as  constituting  "unprofessional  conduct,"  for  which 
a  license  may  be  either  refused  or  revoked  as  the  case  may  be.88 

Acts  of  this  nature  constitute  fraud  ab  initio  for  which  there 
can  be  no  possible  condonation.  Any  one  detected  in  the  act  should, 
it  would  seem,  be  disqualified  ipso  facto.  For  what  possible  defense 
could  be  made  in  extenuation  thereof. 

Under  a  number  of  laws  applicants  are  required  to  state  under  oath 
that  they  are  graduates  of  a  reputable  college.  To  make  such  a 
statement  falsely,  and  knowing  that  the  statement  is  false  is  "unpro- 
fessional and  dishonorable  conduct."  Here  again  the  grounds  are 
patent.  The  only  reason  for  not  taking  arbitrary  action  is  that  it 
would  seem  the  question  of  knowledge  is  an  essential.89  But  under 
some  statutes  knowledge  would  not  seem  an  essential.  However, 
even  in  such  a  case  abstract  principles  of  justice  would  seem  to  demand 
a  hearing  for  the  applicant  prior  to  any  revocation  or  refusal  of  a 
license.90  Evidence  of  fraud  may  be  proven  from  the  public  record, 
kept  by  the  county  clerk  in  pursuance  with  the  law,  together  with 
statements  of  the  applicant.91 


86.  State  v.  Schaeffer,  113  Wis.  595. 

87.  State  v.  District  Court,  26  Mont.  121. 
Gully  v.  Territory  (Okla.),  91  Pac.  1037. 
State  v.  Schaeffer,  113  Wis.  595. 
Stevens  v.  Hill,  74  Vt.  164. 

Curryer  v.  Oliver,  27  Ind.  App.  424. 

88.  State  v.  District  Court,  26  Mont.  121. 

89.  Gulley  v.  Territory  (Okla.),  91  Pac.  1037. 
State  v.  Schaeffer,  113  Wis.  595. 

90.  State  v.  Schaeffer,  113  Wis.  595. 
Stevens  v.  Hill,  74  Vt.  164. 

91:  Curryer  v.  Oliver,  27  Ind.  App.  424. 


163 

2.  Conviction  of  a  Crime  Involving  Moral  Turpitude 

In  not  a  few  jurisdictions  it  has  been  enacted  that  conviction  of 
any  crime  involving  moral  turpitude  shall  constitute  "unprofessional 
and  dishonorable  conduct"  for  which  a  revocation  of  a  license  may 
be  had.92 

At  early  common  law  the  words  "moral  turpitude"  seem  to  have 
had  a  positive  and  fixed  meaning.  This  language  was  defined  as 
being  an  act  of  baseness,  vileness,  or  depravity  in  those  private  and 
social  duties  which  any  man  owes  to  his  fellowmen  or  to  society  in 
general.  "Moral  turpitude"  seems  to  have  implied  something 
immoral  in  itself  regardless  of  the  fact  as  to  whether  or  no  it  was 
punishable  by  law,  hence  the  doing  of  the  act  itself  irrespective  of 
its  being  mala  prohibita  or  lex  scripta  fixed  the  definitude  thereof. 
And  therefore  in  any  statute  using  the  language  "moral  turpitude" 
if  further  undefined,  such  words  will  be  taken  in  this  well  known  and 
common  law  signification.  Thus  the  illegal  sale  of  intoxicating  liquors 
not  being  an  offense  punishable  at  common  law  would  not  come  within 
the  definition  of  a  crime  involving  moral  turpitude,  and  consequently 
a  physician  convicted  of  such  an  offense  would  not  fall  within  the 
meaning  of  the  statute  providing  for  the  revocation  of  the  license  of 
any  physician  who  has  been  convicted  of  a  crime  involving  moral 
turpitude.93 

j. — Felony  or  Gross  Immorality 

The  expression  "gross  immorality"  may  be  taken,  it  would  seem, 
as  similar  in  meaning  to  "moral  turpitude."  Phrases  of  this  nature 
have  been  handed  down  through  the  law  for  centuries,  having  thereby 
received  a  certain  standard  of  interpretation  and  understanding.  A 
definite  meaning  can  consequently  be  affixed  thereto.  Thus  "gross" 
means  willful,  flagrant,  shameful,  with  respect  to  the  office  involved, 
and  refers  to  an  act  of  such  a  nature  as  would  render  an  officer  unfit 
to  retain  his  license  and  authority.94 

As  regards  a  physician  it  would  seem  quite  unnecessary  that  he 
be  per  se  immoral  with  his  patients,  but  that  gross  immorality  in  his 
general  habits  would  constitute  unprofessional  conduct  and  be  suffi- 
cient to  give  a  board  jurisdiction.  Under  these  laws  the  object  sought 
is  to  protect  the  home  of  the  sick  and  distressed  from  any  intrusion 


92.  Fort  v.  City  of  Brinkley,  87  Ark.  400. 
State  v.  Stewart,  46  Wash.  79. 

93.  Fort  v.  City  of  Brinkley,  87  Ark.  400. 

Rose  v.  Baxter,  81  Ohio  St.  522,  7  Nisi  Prins.  (N.  S.)   132. 

94.  Rose  v.  Baxter,  81  Ohio  St.  522,  7  Nisi  Prins.  (N.  S.)  132. 


164 

in  a  professional  character  of  a  vicious  and  unprincipled  man.  Hence 
it  is  that  the  law  disqualifies  any  man  who  has  been  guilty  of  a  felony 
or  of  gross  immorality  and  provides  for  the  revocation  of  their  license 
upon  a  proper  proof  of  such  a  charge.95 

4. — Procuring  or  Aiding  and  Abetting  in  Procuring  a  Criminal 

Abortion 

By  statutory  enactment  many  of  the  states  have  denominated  the 
procuring  or  aiding  and  abetting  in  procuring  a  criminal  abortion  as 
unprofessional  conduct.96 

That  is  any  physician  who  has  been  convicted  of  the  offense  of 
procuring  or  aiding  and  abetting  in  procuring  a  criminal  abortion  is 
guilty  of  unprofessional  conduct  and  upon  proof  of  the  charge  may 
have  his  license  revoked.  This  is  on  the  principle  of  continuing  regu- 
lation and  thereunder  it  is  immaterial  that  the  physician  so  charged 
may  have  expiated  at  a  prior  time  this  same  offense  by  imprisonment 
or  fine  or  the  like.  For  the  revocation  of  the  license  is  not  any  attempt 
to  punish  the  physician  for  the  crime,  but  is  simply  attempting  to 
secure  the  public  against  a  man  who  by  a  conviction  has  proven  him- 
self unworthy  to  further  pursue  the  medical  profession  as  a  calling, 
and  so  important  is  this  profession  and  so  readily  can  its  members 
conceal  the  crime  of  an  abortion  together  with  the  too  frequently  dire 
results  that  a  law  containing  such  a  provision  should  be  upheld  even 
in  the  face  of  the  fact  that  it  is  seemingly  ex  post  facto.97 

The  medical  profession  can  be  amply  protected  from  a  too  harsh 
administration  of  such  a  measure  by  requiring  that  the  facts  on  which 
the  charge  is  based  shall  be  set  forth  in  the  complaint  together  with 
the  allegations  that  there  was  an  intent  to  destroy  the  child  and  that 
the  death  of  the  child  was  produced  by  the  use  of  a  drug  or  instru- 
ment which  also  shall  be  named.98 


95.  Meffert  v.  Board,  66  Kan.  710. 
Spurgeon  v.  Rhodes,  167  Ind.  1. 

96.  Board  v.  Eisen  (Ore.),  125  Pac.  52. 
Mathews  v.  Hedlund  (Neb.),  119  N.  W.  17. 
Munk  v.  Frink,  81  Neb.  631. 

Hawker  v.  People  of  New  York,   170  U.  S.   189. 
Reetz  v.  People  of  Michigan,  188  U.  S.  505. 
Freund,  Police  Power,  Para.  545,  546,  note. 
Macomber  v.  Board,  28  R.  I.  3. 
Matthews  v.  Murphy,  23  Ky.  750. 
Czarra  v.  Board,  25  App.  D.  C.  443. 

97.  Hawker  v.  New  York,  170  U.  S.  189. 
Ch.  I,  Sec.  8,  ut  supra. 

98.  Board  v.  Eisen  (Ore.),  123  Pac.  52. 
Munk  v.  Frink,  81  Neb.  631. 
Mathews  v.  Hedlund,  82  Neb.  825. 


165 

5. — Advertising  of  a  Fraudulent  or  Immoral  and  Illegal  Nature 

A  state  may  constitute  the  advertising  the  willingness  or  ability 
to  procure  or  aid  in  procuring  criminal  abortions  as  unprofessional 
conduct  together  with  advertising  to  treat  and  cure  venereal  diseases, 
or  diseases  and  troubles  peculiar  respectively  to  the  two  sexes,  and 
the  ability  to  cure  the  so-called  chronic  or  incurable  diseases  and  any 
advertising  that  may  be  of  a  fraudulent,  immoral  or  illegal  nature." 

It  has  been  held  insufficient,  however,  for  a  statute  simply  to  use 
the  words  "grossly  improbable  statements"  as  respects  advertising, 
for  it  was  held,  the  law  can,  and  should  define  what  may  constitute 
such  statements.100 

Yet  again,  this  would  not  seem  an  absolute  essential,  as  the  words 
"grossly  improbable  statements"  could  have  reference  only  to  an 
assertion  that  the  physician  was  able  to  cure  supposedly  chronic  and 
incurable  diseases,  or  that  he  alone  could  prescribe  a  certain  remedy 
or  that  his  medicine  could  cure  an  inconceivable  number  of  diseases. 
It  would  seem  no  great  stretch  on  the  language  in  question.101 

Patently  a  physician  who  advertises  himself  through  the  news- 
papers and  by  circulars  to  be  a  medicine  man  of  an  Indian  tribe,  and 
that  he  has  been  adopted  by  that  tribe  whereby  he  obtained  the  pro- 
prietorship of  certain  specific  remedies,  one  of  which  he  claimed 
would  cure  cholera  morbus  when  taken  internally  and  rheumatism 
when  applied  externally,  would  be  making  palpably  "grossly  improb- 
able statements"  and  which  should  be  constituted  "unprofessional  and 
dishonorable  conduct."102 

And  again  while  all  advertisements  to  cure  venereal  diseases  and 
the  like  are  not  per  se  so  worded  as  to  be  regarded  as  improbable 
in  the  results  claimed,  yet,  they  belong  to  that  class  which  are  injuri- 
ous to  the  public  through  their  lack  of  proper  moral  tone.     Many  do 


99.  Hewitt  v.  Board,  148  Cal.  590. 

Aiton  v.  Board  (Ariz.),  114  Pac.  962. 
People  v.  Apfelbaum  (111.),  95  N.  E.  995  . 

100.  Hewitt  v.  Board,  148  Cal.  590. 
And  see  also 

Chenoweth  v.  State   (Colo.),  135  Pac.  771. 
Graeb  v.  State  (Colo.),  135  Pac.  776. 

101.  State  v.  McCrary  (Ark.),  77  Ark.  611,  92  S.  W.  775. 
Kennedy  v.  State,  145  Mich.  241. 

State  v.  Board,  32  Minn.  324. 
Aiton  v.  Board  (Ariz.),  114  Pac.  962. 
People  v.  Apfelbaum  (111.),  95  N.  E.  995. 
Sutherland,  State  Construe,  Para  246,  et  sequi. 

102.  State  v.  Board,  32  Minn.  324. 


166 

in  fact  assert  the  improbable  and  hence  for  one  reason  or  another  all 
such  are  objectionable.103 

The  public  assertion  of  an  ability  to  cure  chronic  diseases  and 
contrary  to  the  express  law  is  an  act  for  which  there  should  be  a 
prompt  conviction.  The  fact  that  no  particular  disease  is  named 
would  really  seem  immaterial,  for  the  words  "chronic  and  incurable" 
when  used  with  reference  to  diseases  of  the  body  are  not  variable  but 
have  a  generally  accepted  meaning-.  "Chronic"  is  the  antithesis  of 
acute  and  a  disease  of  this  nature  is  one  which  is  longstanding,  deep 
rooted,  obstinate,  persistent  and  unyielding  to  treatment.  Such  dis- 
eases are  specifically  named  and  discussed  in  standard  works  and  are 
known  to  all  physicians  who  have  any  considerable  knowledge  of  their 
profession  as  chronic  and  incurable  diseases.  Hence,  it  seems  that 
a  conviction  under  such  a  law  can  well  be  sustained.104 

On  the  same  basis  the  claim  that  certain  mineral  waters  and  prepa- 
rations used  and  controlled  only  by  a  certain  physician  could  cure 
incipient  tuberculosis,  systemic  catarrh,  catarrh  of  the  head,  Bright's 
disease,  diabetes,  rheumatism  and  numerous  other  diseases  would  seem 
quite  clearly  fraudulent  and  to  have  been  made  with  the  sole  pur- 
pose of  deceiving  those  who  can  not  be  supposed  to  know  of  such 
matters.  In  forbidding  such  advertising  and  in  constituting  it  "unpro- 
fessional conduct"  the  law  does  not  do  so  because  of  any  inherent 
evil  in  advertising  or  because  all  who  advertise  are  per  se  frauds. 
Rather  such  acts  are  made  illegal  because  of  the  well  known  fact 
that  those  who  are  ill  with  a  seemingly  incurable  disease  such  as 
cancer,  and  some  kinds  of  tuberculosis,  are  prone  to  turn  to  those 
who  claim  to  give  them  relief.  Should  these  advertisements  merely 
claim  "to  relieve,"  perhaps  they  would  not  be  so  objectionable.  But 
physicians  of  this  ilk  claim  "to  cure"  and  do  not  hesitate  to  take  the 
very  sustenance  of  the  poor,  the  infirm  and  the  diseased,  who  so 
trustingly  rely  on  them.  It  is  for  this  reason  that  these  physicians 
and  most  of  the  so-called  schools  and  cults  are  objectionable.  It  is 
because  they  knowingly  attempt  to  deceive  and  defraud  those  that 
are  helplessly  and  incurably  ill,  thereby  constituting  themselves 
morally  and  economically  persona  non  grata.  They  are  using  funds 
in  a  seemingly  impossible  attempt  which  can  much  better  be  used  for 


104.  State  v.  McCrary  (Ark.),  77  Ark.  611,  92  S.  W.  775. 

But  see 

Chenoweth  v.  State  (Colo.),  135  Pac   771. 
104.  State  v.  McCrary  (Ark.),  103  S.  W.  544. 

But  see 

Graeb  v.  State  (Colo.),  135  Pac.  776. 


167 

food,  clothing  and  shelter  for  the  very  patients.  Acts  of  this  nature 
can  hardly  be  classed  as  anything-  else  than  "grossly  immoral  and 
unprofessional  conduct."103 

Of  the  same  class  are  those  physicians  who  attempt  to  secure 
patients  by  impersonating  another  or  simply  under  some  other  name 
than  his  own.  Advertising  of  this  sort  most  surely  falls  within  the 
term  "unprofessional  and  dishonorable  conduct."  A  citizen  may 
advertise  his  business  in  any  legitimate  manner  perhaps,  but  the  law 
is  most  clearly  justified  in  precluding  any  attempt  at  deception  and 
fraud  by  irresponsible  and  quack  doctors  by  advertising  under  some 
other  name  than  their  own.10" 

6. — Unprofessional  or  Dishonorable  Conduct  of  a  Character  Likely 
to   Deceive   or  Defraud   the  Public 

And  finally  nearly  all  laws  sum  up  the  unexpressed  causes  for 
revocation  under  the  general  language  "grossly  unprofessional  or 
dishonorable  conduct"  of  a  character  likely  to  deceive  or  defraud  the 
public,  or  some  such  similar  language.107 

Under  this  language  it  is  not  necessary  that  a  physician  shall  have 
committed  a  felony  or  the  like,  that  a  revocation  may  be  had.  It  is 
simply  essential  that  there  be  an  attempt  to  deceive  and  defraud  the 
public,  and  to  this  extent  it  is  similar  in  nature  to  a  crime.  Acts  there- 
under may  be  similar  and  closely  akin  to  swindling,  but  all  the  essen- 
tials of  swindling  need  not  be  proved  in  order  to  justify  their  inclusion 
under  the  language  "dishonorable  or  unprofessional  conduct."  Again 
the  words,  "of  a  character  likely  to  deceive  or  defraud  the  public" 
have  been  added  to  many  statutes  to  indicate  that  the  "unprofessional 
conduct"  may  be  of  such  a  nature  as  will  react  to  the  disadvantage  of 


105.  Aiton  v.  Board    (Ariz.),  114  Pac.  962. 

Meffert  v.  State,  66  Kan.  710   (s.  c.  aff.,  195  U.  S.  625). 

State  v.  Board,  34  Minn.  391. 

Hawker  v.  New  York,  170  U.  S.  189. 

Reetz  v.  Michigan,  188  U.  S.  505. 

Sutherland   (State  Const.),   Para.  239,  et  sequi. 

But  see 

Freund,  Police  Power,  Para.  545,  et  sequi. 

Hewitt  v.  Board,  148  Cal.  590. 

Macomber  v.  Board,  28  R.  I.  3. 

Matthews  v.  Murphy,  23  Ky.  750. 

Czarra  v.  Board,  25  App.  D.  C.  443. 

Chenoweth  v.  State   (Colo.),  135  Pac.  771. 

Graeb  v.  State  (Colo.),  135  Pac.  776. 

106.  People  v.  Apfelbaum  (111.),  95  N.  E.  995. 

107.  Morse  v.  State  (Tex.),  122  S.  W.  446. 
People  v.  McCoy,  125  111.  289. 

State  v.  Roy,  22  R.  I.  538. 


168 

the  public  so  as  to  differentiate  it  from  the  "unprofessional  conduct" 
referred  to  in  the  code  of  ethics  as  adopted  by  the  medical  profession 
in  general.  Under  this  language  then,  the  law  purports  to  denounce 
such  conduct  as  does,  or  tends,  to  deceive  and  defraud  the  public. 
Acts  of  this  nature  are  of  necessity  closely  allied  to  crime  because 
they  are  generally  fraudulent.  Yet  it  was  never  intended  thereunder 
to  include  such  conduct  as  might  also  be  covered  by  the  criminal 
code  of  a  state.  Such  acts  are  provided  for  under  other  laws  and 
are  to  be  dealt  with  solely  thereunder.108 

7. — Statute  of  Limitations 
It  may  be  said  generally  that  as  regards  the  application  of  the 
statute  of  limitations  to  actions  of  this  nature  recourse  must  be  had 
to  the  several  statutes  to  ascertain  their  language  before  any  ultimate 
decision  could  be  reached.  However,  it  has  been  held  that  an  action 
of  this  nature  was  not  covered  by  these  laws,  but  this  case  can  only 
be  taken  with  reference  to  the  laws  of  Washington  and  other  states 
that  may  be  similar  thereto.109 


108.  Morse  v.  State   (Tex.),  122  S.  W.  446. 
People  v.  McCoy,  125  111.  289. 

State  v.  Roy,  22  R.  I.  538. 
People  v.  Apfelbaum  (111.),  95  N.  E.  995. 
Aiton  v.  Board  (Ariz.),  114  Pac.  962. 
Kennedy  v.  Board,  145  Mich.  241. 
State  v.  McCrary,  77  Ark.  611,  92  S.  W.  775. 
See  also 

Matthews  v.  Murphy,  23  Ky.  750. 
Czarra  v.  Board,  25  App.  D.  C.  443. 
Hewitt  v.  Board,  148  Cal.  590. 
Macomber  v.  Board,  28  R.  I.  3. 
Chenoweth  v.  State  (Colo.),  135  Pac.  771. 
Graeb  v.  State  (Colo.).  135  Pac.  776. 

109.  State  v.  Stewart,  46  Wash.  79. 


CHAPTER  V 

PROCEDURE  AND  PROOF  UNDER  THE  MEDICAL 
PRACTICE  ACTS 


A.     PRACTICING  WITHOUT  A  LICENSE 
I.     The  Indictment 

§     11.  A  Misdemeanor-Procedure  Taken. 

§    12.  The  Indictment  or  Information  Generally. 

§     13.  The  General  Essentials  of  the  Indictment. 

§     1h.  Duplicity. 

§     15.  Uncertainty. 

§     16.  Names  of  Persons  Treated  by  Accused. 

§     11.  Compensation. 

§     18.  Without  Having  First  Been  Examined  and   Obtained   a   License   as 

Required  by  Law. 
§     19.  Defendant's  School  or  Branch  of  Medicine,  Etc. 
§    80.  Treating  Human  Beings. 
§    81.  Exceptions. 
§    82.  Prior  Practitioner,  Etc. 
§     83.  Registration  in  County  of  Residence. 
§     81f.  Itinerants. 
§    85.  Miscellaneous. 

(1)  Proving  More   Than   One  Infraction  in  One   Count — Defense. 

(2)  Burden  on  Defendant. 

(3)  Conclusions. 

II.    The  Proof 

(a)    Sufficiency  of  the  Evidence 

§     86.  In  General. 

§     81.  Intent. 

§    S8.  Sufficiency  of  Evidence  under  Statutes  Forbidding  Treatment  by  any 

System  Unless  Duly  Licensed. 
§    89.  Opening  an  Office. 
§    90.  Advertising  as  a  Physician. 
§     91.  Recommending  Medicine  for  a  Fee. 
§    92.  Prescribing  for  a  Fee. 
§    93.  Prima  Facie  Evidence. 
§    9k.  Burden  on  Defendant. 
§     95.  Evidence  as  to  a  Particular  School  of  Medicine. 

(1)  Osteopathy. 

(2)  Christian   Science. 

(3)  Chiropractic. 

(4)  Suggestive  Therapeutics,  Etc. 


170 

(b)    Admissibility  of  Evidence 
§     96.  In  General. 
§     97.  Relevancy. 
§    98.  Best  Evidence. 
§     99.  Expert  Witnesses. 
§  100.  Ordinary  Witnesses. 
§  101.  Miscellaneous — 

(1)  Non-Compliance  with  the  Law  as  a  Defense  in  Tort. 

(2)  Recovery  for  Medical  Services. 

(3)  Former  Jeopardy. 

B.     UNPROFESSIONAL   CONDUCT 
I.    The  Revocation  of  a  License 

(a)     Procedure 

§  102.  The  Right  to  Practice  Medicine. 

§  103.  Due  Process  of  Law. 

§  10k.  The  Nature  of  the  Power  and  of  the  Action. 

§  105.  Procedure  Necessary. 

§  106.  Criminal  Abortion. 

§  1 07.  Appeal  to  Court  of  Law. 

{b)    Evidence 

§  108.  As  Essential  to  Sustain  a  Conviction  by  a  Board  of  Unprofessional 
Conduct. 

A. — PRACTICING   WITHOUT   A  LICENSE 

i. — The  Indictment 
§  71. — A  Misdemeanor — Procedure  Taken 
Under  a  majority  of  the  medical  practice  acts  the  procedure  taken 
in  the  event  of  a  violation  of  the  law  is  quite  similar  to  that  used  in 
other  cases,  civil  and  criminal,  as  the  facts  require.  Frequently,  how- 
ever, a  summary  prosecution  or  the  like  is  accorded  under  the  law, 
hence  it  is  always  advisable  to  examine  the  particular  act  to  ascertain 
what  changes  have  been  made,  if  any,  and  then  proceed  pursuant 
thereto.  Again,  in  most  jurisdictions,  a  violation  of  any  of  the  pro- 
visions of  a  public  health  law  is  usually  denominated  a  misdemeanor, 
and  practicing  or  attempting  to  practice  without  a  license  is  generally 
considered  as  such.  When,  therefore,  the  fact  that  any  person  seems 
to  be  violating  the  law  is  brought  to  the  attention  of  the  proper  authori- 
ties, an  investigation  may  be  had,  and  should  the  evidence  warrant  it 
an  indictment  may  be  brought  in  any  court  of  proper  jurisdiction.  The 
person  in  question  may  then  be  compelled  to  account  for  his  alleged 
violation.  As  to  who  shall  take  action  in  the  premises,  as  stated, 
provision  is  frequently  made  therefor  in  the  particular  statute.  Again, 
it  may  be  somewhat  in  doubt  as  to  just  whose  duty  it  is  to  prosecute 
in  these  cases.     Generally  it  would  seem  to  devolve  upon  the  county 


171 

or  state's  attorney  to  proceed  against  any  alleged  offender  upon  infor- 
mation thereof,  duly  laid  before  him.  In  some  instances,  however,  the 
board  of  examiners  are  the  actual  prosecutors.  In  any  event  it  is  a 
mere  matter  of  convenience  and  policy  as  to  who  the  prosecutor  shall 
be.  An  indictment  or  information  having  been  brought,  the  person 
prosecuted  is  to  be  proceeded  against  pursuant  to  the  rules  of  common 
law  and  the  statutes  of  the  realm.  And  this  is  true  also  in  the  quasi- 
civil  actions  as  in  a  suit  for  debt. 

§  72. — The  Indictment  or  Information  Generally 
In  all  criminal  prosecutions  the  right  of  the  accused  to  be  informed 
of  the  nature  and  cause  of  the  accusation  against  him  is  prescribed 
by  the  sixth  amendment  to  the  federal  constitution  as  well  as  by 
similar  provisions  in  nearly  if  not  all  the  state  constitutions. 

According  to  these  constitutional  requirements  it  is  fundamental 
that  the  crime  or  offense  with  which  a  person  stands  charged  shall  be 
defined  with  reasonable  precision.  The  accused  must  be  informed 
first  by  the  law  and  next  by  the  complaint  as  to  what  acts  or  conduct 
is  prohibited  and  made  punishable.  It  is  the  duty  of  the  legislature  to 
see  that  a  given  statute  is  properly  drawn  so  as  to  conform  to  the  con- 
stitution. If  there  be  any  discrepancy  therein  and  if  it  constitute 
ground  for  a  reasonable  doubt  it  is  the  duty  of  the  court  to  declare 
such  an  enactment  invalid.  Again  it  is  the  duty  of  the  practicing 
attorney,  and  in  a  certain  degree  of  the  court  as  well,  to  so  draft  the 
indictment  as  to  give  the  accused  all  necessary  information.  If  the 
indictment  be  not  so  drawn,  upon  a  motion  made  by  the  attorney  for 
the  defendant  and  a  proper  showing,  it  may  be  quashed.  It  is  essential 
that  every  man  should  know  with  certainty  when  he  is  committing  a 
crime  and  with  what  crime  he  is  charged.  Within  reasonable  limits 
therefore  he  may  be  assured  of  this  protection  by  the  court.1 

§  73. — The  General  Essential  of  the  Indictment 

The  law  being  sufficient  as  measured  by  the  constitution  it  next 
becomes  essential  to  pass  on  the  indictment,  which  if  it  adheres  sub- 
stantially to  the  language  of  the  law  in  force  is  sufficient.  Nor  is  it 
always  necessary  that  the  precise  language  of  the  statute  be  used.2 


1.  Czarra  v.  Board,  25  App.  D.  C.  443. 

2.  Whitlock  v.  Commonwealth,  89  Va.  337,  15  S.  E.  893. 
State  v.  Miller  (Iowa),  124  N.  W.  167. 

State  v.  Huff,  75  Kan.  585,  90  Pac.  279. 
State  v.  Blair,  92  Iowa  28. 
State  v.  Kendig,  133  Iowa  164. 
Singh  v.  State  (Tex.),  146  S.  W.  891. 


172 

But  an  indictment  which  charges  that  the  defendant  "did  unlaw- 
fully practice  medicine  for  reward  and  compensation  against  the  form 
of  the  statute"  without  setting  forth  in  what  the  unlawfulness  con- 
sisted is  insufficient.  For  the  rules  of  criminal  pleading  require  that 
the  offense  shall  be  charged  specifically.  First,  in  order  that  the 
accused  may  know  precisely  what  he  is  to  defend  against ;  and  secondly, 
in  order  that  the  record  may  be  a  bar  to  any  subsequent  prosecution.3 

While  this  may  seem  somewhat  technical  it  is  to  be  noticed  that 
the  indictment  failed  to  use  the  language  of  the  statute,  but  merely 
referred  the  accused  to  the  state  for  a  specific  definition  of  his  crime. 
And  in-  all  fairness  it  would  seem  that  this  might  be  held  insufficient. 
The  indictment  is  sufficient,  however,  if  the  words  used  are  equivalent 
to  those  employed  in  the  statute.  For  example,  to  charge  a  person  with 
practicing  medicine  is  equivalent  to  charging  that  he  practiced  as  a 
physician.4 

Again  the  indictment  may  be  drawn  in  two  counts,  in  one  of  which 
the  statutory  language  is  taken  that  the  accused  "practiced  for  a  com- 
pensation" and  in  the  second  this  may  be  omitted  and  yet  the  language 
as  a  whole  is  sufficient  to  support  a  conviction  and  should  be  sustained.4 

An  indictment  charging  that  defendant  "did  wrongfully,  unlaw- 
fully and  publicly  profess  to  be  a  physician  and  did  assume  the  duties 
thereof  and  then  and  there  wrongfully,  falsely  .and  unlawfully  did 
publicly  profess  to  cure  and  heal  disease  and  so  forth  by  means  of  a 
certain  system"  was  substantially  in  the  language  of  the  statute  and 
was  therefore  sufficient.5 

But  under  the  California  law  of  1907  wherein  the  term  "practice 
medicine"  was  construed  as  meaning  "to  pursue  a  business"  it  was 
held  insufficient  to  simply  allege  that  defendant  did  wilfully  and  unlaw- 
fully treat  the  sick  or  afflicted  without  a  proper  certificate  by  practicing 
a  system  or  mode  known  as  "Chiropractic."  It  was  said  that  the 
complaint  might  have  been  sufficient  if  it  had  charged  that  the 
defendant  had  "wilfully  and  unlawfully  practiced  medicine  without 
the  certificate  required  by  law"  and  so  forth.  The  indictment  was 
insufficient  because  the  use  of  the  term  "practice"  therein  charged  no 


2.- — Continued. 

State  v.  Schaeffer,  129  Wis.  459,  109  N.  W.  522. 
State  v.  Pirlot,  19  R.  I.  695,  36  Atl.  715. 
State  v.  Wilson,  74  Vt.  379,  65  Atl.  88. 
Gee  Woo  v.  State,  36  Neb.  241,  54  N.  W.  513. 
Ex  parte  Greenall,  153  Cal.  767,  96  Pac.  804. 

3.  State  v.  Pirlot,  19  R.  I.  695,  36  Atl.  715. 

4.  Whitlock  v.  Commonwealth,  89  Va.  337,  15  S.  E.  893. 
But  see 

State  v.  Pirlot,  19  R.  I.  695,  36  Atl.  715. 

5.  State  v.  Miller  (Iowa),  124  N.  W.  167. 


173 

offense,  simply  being  used  in  a  descriptive  sense  and  not  with  the 
import  of  the  statute.  If  the  second  form  had  been  used  the  statute 
would  have  been  followed  more  nearly  and  the  rule  as  to  charging  the 
offense  specifically  would  have  been  complied  with.  It  would  thus 
seem  that  a  use  of  similar  language  will  not  always  be  sufficient,  for 
using  other  words  than  the  statute  may  change  the  meaning  thereof 
and  name  an  act  which  has  not  been  denominated  an  offense  there- 
under. Hence  to  have  brought  a  person  within  the  meaning  of  the 
California  law  of  1907  it  was  necessary  to  make  it  appear  that  the 
accused  was  practicing  or  attempting  to  practice  medicine  as  a  business 
or  calling.0 

It  is  immaterial  whether  or  no  a  matter  of  treatment  employed 
by  an  accused  be  actually  surgery.  But  even  if  so  it  need  not  be 
specially  alleged  as  such  in  the  information.  It  is  sufficient  to  follow 
the  language  of  the  statute,  and  hence  if  defendant's  acts  are  within 
its  terms  it  is  immaterial  if  they  also  amount  to  the  practice  of  surgery.7 

An  indictment  charged  that  said  party  "from  day  of 

A.  D.  till  the  finding  of  this  indictment,  did 

in  said  county  and  state  falsely,  wrongfully  and  unlawfully  assume 
the  duties  of  a  physician  and  make  a  practice  of  prescribing  medicine 
for  the  sick,  and  did  wrongfully,  falsely  and  unlawfully  publicly 
profess  to  cure  and  heal  without  first  having  obtained  from  the  board 

of  medical  examiners  of  the  state  of  and  filed  for 

record  a  certificate  conferring  on  him  the  right  to  practice  contrary 
to  the  statute  in  such  cases  made  and  provided." 

The  indictment  was  challenged  on  several  grounds,  in  that  it  was 
not  sufficiently  certain  as  to  the  person  charged,  or  as  to  the  offense 
intended  to  be  charged.  And  in  that  the  indictment  did  not  give  the 
slightest  information  as  to  the  time,  place  and  circumstances  of  the 
offense  or  of  the  evidence  which  the  defendant  would  be  required  to 
produce  to  establish  a  defense.  The  court,  however,  held  the  statutory 
definition  of  the  crime  complete  and  that  the  indictment  charged  the 
offense  essentially  in  the  language  of  the  statute  and  that  was  sufficient.8 

But  under  a  law  which  enumerates  the  various  acts  which  should 
be  regarded  as  practicing  medicine  an  indictment  in  charging  an  offense 
must  allege  some  one  of  these  acts.  That  is,  an  indictment  which 
charges  a  defendant  with  holding  himself  out  as  a  physician  and  does 
not  state  how,  is  insufficient.  The  statute  may  enumerate  various  ways 
of  doing  it,  and  each  one  of  which  may  be  constituted  a  separate 

6.  Ex  parte  Greenall,  153  Cal.  767,  96  Pac.  804. 

7.  State  v.  Huff,  75  Kan.  585,  90  Pac.  279. 

8.  State  v.  Kendig,  133  Iowa  164. 


174 

offense.  In  such  a  case  it  is  therefore  imperative  that  the  allegations 
descend  far  enough  into  the  particulars  in  order  to  give  the  accused 
reasonable  notice  of  the  evidence  that  will  be  produced  at  the  trial.  A 
defendant  is  always  entitled  under  the  constitution  to  "demand  the 
cause  and  nature  of  the  accusation  against  him."9 

From  these  cases  it  would  seem  the  rule  may  be  laid  down  that  in 
drafting  an  indictment  under  a  medical  practice  act  the  safest  plan  is 
to  follow  the  language  of  the  statute.  For  should  the  statute  be  invalid 
there  is  no  remedy  in  the  courts  as  regards  such  statute  per  se,  but 
only  in  the  legislature.  While  should  the  statute  be  valid  a  deviation 
therefrom,  even  a  hairsbreadth,  may  prove  fatal  to  the  indictment,  so 
that  it  will  be  quashed. 

§  74. — Duplicity 

To  the  charge  of  duplicity  as  respects  indictments  under  the  several 
medical  practice  acts  it  would  appear  that  the  courts  have  lent  but  an 
unwilling  ear.  For  usually  an  indictment  has  been  sustained  when  a 
demurrer  thereto  has  been  laid  on  that  ground.  For  instance,  it  would 
seem  permissible  to  draw  an  indictment  of  one  count  charging  therein 
that  the  defendant  both  prescribed  medicine  and  appended  the  letters 
"M.D."  to  his  name.  Of  course,  as  to  whether  or  no  this  may  be  done 
generally  depends  entirely  on  the  language  of  the  given  statute.  In 
the  statute  under  which  the  indictment  in  question  was  laid,  apparently 
there  was  no  intent  on  the  part  of  the  legislature  to  define  separate  and 
distinct  offenses.  Hence  it  would  seem  to  follow  quite  naturally  that 
in  using  the  statutory  language  there  could  be  no  duplicity.  Herein, 
therefore,  it  is  first  essential  to  determine  whether  or  no  the  law  sets 
forth  more  than  one  offense  and  then  lay  the  indictment  accordingly.10 

Again  an  indictment  may  allege  that  the  accused  "did  wrongfully 
practice  or  attempt  to  practice"  without  being  open  to  the  charge  of 
duplicity  thereby.  But  here  also  the  intent  of  the  law  must  be  deter- 
mined in  order  to  know  whether  one  or  more  offenses  are  being  set 
forth.11 

§  75. — Uncertainty 

Generally  as  regards  the  use  of  the  terms  "or"  and  "and"  it  may 
be  said  that  the  use  of  the  term  "or"  is  only  fatal  when  the  statement 


9.  State  v.  Wilson,  79  Vt.  379,  65  Atl.  88. 
State  v.  Pirlot,  19  R.  I.  695,  36  Atl.  715. 
Gee  Woo  v.  State,  36  Neb.  241,  54  N.  W.  513. 
Schaeffer  v.  State,  129  Wis.  459,  109  N.  W.  522. 

10.  Hale  v.  State,  58  Ohio  St.  576,  51  N.  E.  154. 
Schaeffer  v.  State,  129  Wis.  459,  109  N.  W.  522. 
State  v.  Blair,  92  Iowa  28. 

11.  State  v.  Welch,  129  N.  C  579,  40  S.  E.  120. 
State  v.  Blair,  92  Iowa  28. 


175 

of  the  offense  is  thereby  rendered  uncertain.  It  is  not  objectionable 
where  one  term  is  used  to  explain  the  other,  or  where  the  language  of 
the  law  makes  either  the  attempt  or  the  act  itself  indictable.  Hence 
it  would  seem  generally  permissible  in  drawing  an  indictment  to 
follow  the  statute  specifically  and  charge  an  accused  with  both  "prac- 
ticing or  attempting  to  practice  medicine."  And  the  use  of  the  dis- 
junctive would  not  invalidate  the  indictment. 12 

The  governing  principle  to  be  applied  in  passing  on  the  sufficiency 
of  averments  in  indictments  is  that  the  nature  of  the  offense  charged 
must  appear  so  explicitly  and  plainly  from  the  terms  used  as  to 
leave  the  defendant  in  no  unfounded  doubt  in  preparing  to  meet 
the  accusation.  Under  one  rule  it  has  been  held  proper  to  discard 
the  disjunctive  even  when  appearing  in  the  statute  and  to  substitute 
the  conjunctive  therefor  in  the  indictment.  But  this  has  only  been 
allowed  on  the  ground  that  the  alternative  charge  left  the  defendant 
in  doubt  as  to  the  nature  of  the  offense  with  which  he  was  charged. 
And  hence  a  statute  may  make  two  or  more  distinct  acts  constituting 
separate  stages  of  the  same  act  indictable,  and  either  one  or  both  may 
be  charged  in  a  single  indictment  or  a  single  count  thereof.  When 
distinct  acts  representing  successive  stages  of  a  transaction  are  con- 
nected in  a  statute  by  the  word  "or"  it  is  in  accordance  with  well-settled 
precedents  in  drawing  the  indictment  to  couple  the  independent  clauses 
by  using  the  word  "and"  instead  of  following  the  statute  closely  and 
using  "or."  Nor  will  the  indictment  be  open  to  criticism  in  not 
following  the  statute  and  charging  the  offense  therein  set  forth,  nor  as 
to  the  making  for  uncertainty  in  naming  the  offense.13 

These  cases  would  further  seem  to  show  that  the  courts  tend  to 
a  liberal  construction  of  medical  practice  acts.  Apparently  from  the 
idea  that  these  laws  are  not  strictly  penal  measures,  but  are  in  reality 
police  regulations  for  the  protection  of  the  people.  Hence  to  adequately 
secure  this  a  broad  view  as  to  the  drafting  of  indictments  is  an 
essential. 

§  76. — Names  of  Persons  Treated  by  Accused 

In  drawing  up  an  indictment  charging  a  person  with  unlawfully 
practicing  medicine  it  would  not  seem  to  be  a  defect  in  substance  to 
fail  to  include  in  the  averment  the  names  of  the  individuals  treated 
when  such  names  are  unknown.  It  may  be  said  to  be  sufficient  simply 
to  aver  that  the  defendant  "did  unlawfully  practice  medicine  to  divers 

12.  State  v.  Van  Doran,  109  N.  C.  864,  14  S.  E.  32. 
State  v.  Welch,  129  N.  C.  579,  40  S.  E.  120. 

jPP    3.1SO 

Osborn  v.  Carey  (Ida.),  132  Pac.  967. 

13.  State  v.  Van  Doran,  109  N.  C.  864,  14  S.  E.  32. 


176 

and  sundry  persons  whose  names  are  to  the  county  attorney  unknown." 
In  this  it  would  seem  that  it  is  not  the  failure  to  state  the  names  in 
the  averment,  supposing  them  to  be  unknown,  that  would  constitute  a 
substantive  defect,  but  the  failure  to  state  that  said  names  were 
unknown.  And  further  it  might  seem  essential  to  state  the  names 
of  all  persons  treated  supposing  they  were  known.14 

But  it  has  been  held  that,  under  the  Illinois  law  of  1899,  it  is 
sufficient  to  allege  simply  that  the  defendant  unlawfully  practiced 
medicine  by  treating  and  professing  to  treat  and  prescribe  certain 
material  remedies  for  the  physical  ailments  of  another  without  a 
license  so  to  do.  And  further  to  allege  that  the  offense  was  com- 
mitted in  a  certain  place  and  about  a  certain  time  and  that  the  defen- 
dant had  been  previously  convicted  of  the  same  offense.  Nor  was 
it  deemed  essential  that  the  accused  be  furnished  with  the  names  of 
the  parties  she  was  alleged  to  have  treated.  It  was  said  to  be  a 
matter  which  rested  entirely  in  the  discretion  of  the  trial  court  as  to 
whether  or  no  the  complainant  should  be  compelled  to  file  a  more 
specific  statement  of  claim  wherein  to  set  forth  the  names  of  the 
alleged  patients.  At  any  rate  it  was  no  error  to  refuse  the  defendant's 
request,  therefor,  so  long  as  the  complaint  gave  the  dates  on  which 
the  alleged  offense  was  committed.  And  further,  even  it  was  not  con- 
sidered necessary  to  set  forth  that  the  names  were  unknown.15 

Now  it  is  submitted  that  the  underlying  principle  in  these  cases  is 
identical  even  though  the  one  be  a  matter  of  an  indictment,  while  the 
second  is  an  action  of  debt.  The  forms  it  is  submitted  are  more  or 
less  immaterial.  It  is  the  purpose  which  these  forms  subserve  that 
is  of  interest.  And  with  either  system  the  idea  is  to  inform  the  accused 
adequately  of  his  offense.  Now,  inasmuch  as  these  statutes  are  police 
regulations  and  not  penal,  greater  liberality  may  be  permitted  in 
drafting  an  indictment  thereunder,  but  at  the  same  time  it  must  be 
borne  in  mind  that  any  policy  of  liberality  permitted  in  construction 
must  always  be  commensurate  with  and  delimitated  by  a  policy  of 
justice  and  equity  to  the  accused.  And  hence  it  is  said  in  the  second 
case  that  it  is  in  the  discretion  of  the  trial  court  as  to  whether  or  no 
the  names  shall  be  furnished.  If  fairness  to  the  accused  should  demand 
such  further  statement  the  trial  court  may  rule  accordingly. 

Then  again  under  some  acts  the  definition  of  the  offense  may  be 
in  such  language  as  entirely  to  obviate  the  necessity  of  setting  forth 
such  facts  under  any  consideration.  If  this  be  true  it  can  be  made 
apparent  to  the  court  .and  no  difficulty  need  be  experienced.    Finally, 


14.  Sofield  v.  State,  61  Ohio  St.  600,  85  N.  W.  840. 

15.  People  v.  Dunn  (111.),  99  N.  E.  577. 


177 

it  is  said  that  a  complaint  is  not  insufficient  because  it  did  not  contain 
the  name  of  the  affiant  in  the  body  thereof  when  the  name  of  the  affiant 
was  at  the  bottom  of  the  affidavit,  and  was  the  party  making  the  same, 
with  the  jurat  of  the  officer  taking  it.16 

But  this  statement  need  in  no  way  be  taken  as  modifying  the  one 
previously  made,  generally  speaking,  for  it  would  seem  that  the  Texas 
case  is  based  on  peculiar  local  statutes  as  regards  pleading  and  the 
like.  And,  of  course,  if  this  be  the  case  it  is  to  be  expected  that  there 
will  be  some  restriction  placed  on  a  broad  use  of  terms  and  the  inter- 
pretation of  the  law.  In  order  to  mete  out  perfect  justice  to  all  the 
law  must  be  followed  with  no  little  degree  of  nicety.  And  this,  it 
may  be  said,  is  the  basic  principle  in  all  pleading.  Hence  any  devia- 
tions which  are  permitted  from  the  law,  statutory  or  common,  must 
be  only  upon  a  proper  conception  of  all  the  facts  which  may  enter 
into  a  given  case  and  of  all  the  equities  involved. 

§  77. — Compensation 

Under  many  medical  practice  acts  the  words,  "practice  medicine," 
are  defined  as  meaning  "to  suggest,  recommend,  prescribe  or  direct  for 
the  use  of  any  person  any  drug,  medicine,  appliance,  apparatus  or 
other  agency,  whether  material  or  not  material,  for  the  cure,  relief  or 
palliation  of  any  ailment  or  disease  of  the  mind  or  body,  or  for  the 
cure  or  relief  of  any  wound,  fracture  or  other  bodily  injury  or 
deformity,  after  having  received,  or  with  the  intent  of  receiving  there- 
for, either  directly  or  indirectly,  any  gift  or  compensation,"  or  are 
defined  in  somewhat  similar  language.17 

Hereunder  it  would  seem  that  the  receipt  of  a  fee  at  some  time, 
and  in  some  manner,  was  an  essential  factor  in  alleging  an  offense 
under  the  statute.  And  further,  that  an  omission  of  such  an  averment 
might  render  the  indictment  fatally  defective.  But  on  the  other  hand 
it  would  seem  that  an  indictment  which  charged  the  accused  with 
"practicing  medicine  without  a  license"  and  notwithstanding  a  failure 
to  allege  a  receipt  of  compensation  therefor  might  be  sufficient  to 
support  a  conviction,  and  it  has  been  so  held.  Such  an  averment  being 
sustained  on  the  ground  that  since  the  statutory  definition  of  the  words 
"practice  of  medicine"  embraced  the  idea  of  the  exacting  of  com- 
pensation an  indictment  charging  that  the  accused  "did  unlawfully 
practice  medicine"  would  necessarily  be  inclusive  of  the  meaning  as 
set  forth  in  the  statutory  definition.  And  hence  an  indictment  con- 
taining such  an  averment,  together  with  a  negation  of  any  qualification 


16.  Singh  v.  State  (Tex.),  146  S.  W.  891. 

17.  Sec.  1478  Georgia  Code,  1904. 


178 

essential  to  the  lawful  practice  of  medicine  would  be  good  in  substance 
and  support  a  conviction,  and  even  though  the  apparently  necessary 
allegation  of  a  receipt  of  compensation  were  omitted  therefrom.18 

From  this  will  be  seen  the  well-nigh  imperative  necessity  of  fol- 
lowing the  statute  closely  in  laying  an  indictment.  For  it  is  easily 
conceivable  that  a  statute  could  be  so  drawn  and  contain  such  lan- 
guage whereunder  it  would  be  fatal  to  fail  to  allege  the  receipt  of  com- 
ensation.  Thus  it  appears  that  no  general  conclusion  can  be  drawn 
from  this  isolated  decision  as  to  the  sufficiency  of  all  indictments  under 
apparently  similar  statutes.  But  it  can  only  be  said  that  having  exam- 
ined the  law  with  due  care  with  the  idea  of  ascertaining  its  true  intent, 
the  indictment  must  then  be  so  drafted  as  to  follow  this  intent  and  to 
charge  the  offense  named  therein.  And  that  in  so  doing  it  may  or  may 
not  be  required  to  aver  the  receipt  of  compensation  pursuant  to  the 
intent  of  the  aforesaid  statute. 

§  78. — "Without  Having  First  Been  Examined  and  Obtained 
a  License  as  Required  by  Law" 

It  was  claimed  that  an  indictment  which  charged  that  an  accused 
"did  unlawfully  practice  as  a  physician  .  .  .  and  did  not  then  and 
there  have  a  license  so  to  do"  was  insufficient,  because  it  did  not  con- 
tain the  specific  words  of  the  statute  to  the  effect  that  the  practicing 
was  "without  having  first  been  examined  and  obtained  a  license  as 
required  by  law."19 

And  the  trial  court  sustained  the  demurrer  to  the  indictment  on 
this  ground.  But  the  ruling  was  deemed  erroneous  and  an  appeal 
was  reversed.  The  higher  court  holding  the  statement  of  the  offense 
sufficient  for  the  trial  of  the  party  charged,  since  clearly  no  license 
would  issue  without  the  applicant  having  been  first  examined  pursuant 
to  the  law.  Hence  the  charge  that  accused  "practiced  without  a  license" 
was  tantamount  to  saying  that  he  practiced  "without  first  having  been 
examined  and  obtained  a  license"  and  so  forth.  Thus  it  would  seem 
unnecessary  to  aver  a  failure  both  to  be  examined  and  to  obtain  a 
license,  as  the  latter  charge  alone  will  carry  the  former  with  it.  Again, 
it  cannot  be  presumed  that  the  unlawful  act  of  the  accused  was  due 
to  any  dereliction  of  duty  on  the  part  of  the  examiners,  in  that  the 
board  had  failed  to  afford  the  accused  an  opportunity  for  an  exam- 
ination, nor  would  such  a  presumption  if  true  be  any  defense.  But 
the  alleged  violation  of  the  law  by  the  accused  is  se  volunte  to  which 


18.  Blalock  v.  State,  112  Ga.  338,  37  S.  E.  361. 
State  v.  Welch,  129  N.  C.  579,  40  S.  E.  120. 

19.  Sec.  1334  Mississippi  Code,  1906. 


179 

the  board  can  in  no  way  be  said  to  be  particeps  criminis,  and  hence 
if  the  accused  had  no  license  it  was  not  because  the  board  failed 
to  examine  him,  but  because  said  accused  did  not  choose  to  present 
himself  before  the  board  for  an  examination.  Moreover,  the  proof 
by  the  accused  of  his  possession  of  a  license  would  import  his  having 
had  an  examination  and  constitute  a  complete  defense.  And  so,  on 
the  other  hand,  his  not  having  a  license  imports  a  failure  to  have  been 
first  examined  and  hence  an  allegation  to  the  effect  that  defendant  had 
no  license  is  a  sufficient  definition  of  the  statutory  offense  whereon 
to  sustain  a  conviction.20 

§  79. — Defendant's  School  or  Branch  of  Medicine,  Etc. 

An  information  is  not  insufficient  because  it  does  not  set  forth  the 
school  of  medicine  to  which  the  defendant  is  alleged  to  belong  or  the 
particular  method  or  system  which  it  is  alleged  that  he  effects  cures 
and  treats  for  pay.21  Again,  an  information  need  not  allege  any  par- 
ticular branch  in  which  the  defendant  is  supposed  to  be  engaged  under 
a  law  which  simply  forbids  any  one  to  practice  medicine  prior  to  a 
compliance  with  any  of  the  provisions  thereof.22 

Nor  is  it  necessary  to  allege  the  existence  of  certain  medical  socie- 
ties to  which  reference  may  have  been  made  in  the  indictment.23 

For  under  most  statutes  it  would  seem  that  the  essential  is  to 
prove  that  the  defendant  practiced  medicine  contrary  to  the  law. 
That  he  belonged  to  any  particular  school  of  medicine  or  employed  any 
special  system  is  really  immaterial.  All  that  is  essential  would  be 
whether  or  no  the  employment  of  this  school  or  system  of  medicine 
would  constitute  the  practice  of  medicine  contrary  to  the  law.  Thus 
the  allegation  that  the  defendant  practiced  contrary  to  the  law,  and 
the  proof  that  he  engaged  in  any  branch  or  followed  any  school  would 
sustain  a  conviction,  provided  always  that  in  so  doing  the  accused  would 
come  under  the  statutory  offense.24 

§  80. — Treating  Human  Beings 
It  is  not  essential  that  an  indictment  should  charge  that  a  defendant 
in  practicing  medicine  was  practicing  on  human  beings  as  distinguished 


20.  State  v.  Tucker  (Miss.),  59  So.  826. 

21.  Singh  v.  State  (Tex.),  146  S.  W.  891. 

22.  Antle  v.  State,  6  Tex.  App.  202. 
Singh  v.  State  (Tex.),  146  S.  W.  891. 

23.  People  v.  Boo  Doo  Hong,  122  Cal.  606,  55  Pac.  402. 

24.  People  v.  Boo  Doo  Hong,  122  Cal.  606,  55  Pac.  402. 
Antle  v.  State,  6  Tex.  App.  202. 

Singh  v.  State  (Tex.),  146  S.  W.  891. 


180 

from  furnishing  medicine  for  domestic  animals.  For  clearly  such  an 
objection  would  be  purely  hypercritical  and  without  merit,  as  there 
is  a  plain  distinction  between  practicing  medicine  and  treating  animals, 
which  is  both  commonly  and  legally  recognized.  Moreover,  the  general 
recognition  which  is  given  to  this  distinction  is  sufficient  to  save  the 
defendant  from  any  doubt  as  to  the  offense  with  which  he  is  charged, 
and  hence  an  indictment  in  such  cases  which  simply  follow  the  statute, 
is  sufficient.  If  the  language  of  the  statute  be  uncertain  it  would 
seem  improper  to  attack  the  indictment,  for  under  such  circumstances 
it  is  submitted  that  the  proper  course  is  to  question  the  validity  of  the 
statute  per  se.25 

§  81. — Exceptions 

Nearly,  if  not  all,  statutes  contain  exceptions  to  the  penalties  of 
the  law  which  apply  to  certain  classes,  such  as  students  in  a  physi- 
cian's office,  a  physician  acting  in  consultation  and  the  like.  By  these 
exceptions  certain  persons  are  apparently  authorized  to  practice  medi- 
cine without  first  securing  a  license.  Hence  the  question  arises,  should 
an  indictment  negative  these  exceptions,  that  is,  deny  the  fact  that 
the  defendant  is  entitled  to  avoid  the  disabilities  of  the  law  by  reason 
of  his  inclusion  within  some  one  or  more  of  these  provisions?  Gen- 
erally speaking  it  has  been  held  that  an  indictment  need  not  negative 
such  exceptions,  as  said  provisions  are  more  properly  matters  of 
defense,  being  provable  under  the  plea  of  "not  guilty."26 

The  general  rule  as  to  exceptions,  provisos  and  the  like  is  that 
when  these  form  a  portion  of  the  description  of  the  offense  as  defined 
by  the  statute,  so  that  the  ingredients  of  said  statutory  offense  cannot 
be  accurately  and  definitely  stated  if  some  one,  or  all  of  the  said 
exceptions  and  so  forth  be  omitted,  then  it  is  necessary  to  negative 
such  provisions.  But  supposing  the  exception  to  be  separable  from 
the  description  and  not  a  specific  ingredient  thereof,  then  it  need  not 
be  noticed  in  the  accusation  for  then  it  is  a  matter  of  defense.27 

Again,  an  indictment  which  charges  a  violation  of  a  generally  pro- 
hibitory provision  makes  a  prima  facie  case  and  if  the  accused  comes 
within  any  clause  or  provision  which  would  except  him  from  the 


25.  State  v.  Kendig,  133  Iowa  164. 

26.  Antle  v.  State,  6  Tex.  App.  202. 
Hale  v.  State,  58  Ohio  St.  576. 

State  v.  Welch,  189  N.  C.  579,  40  N.  E.  120. 
Sofield  v.  State,  61  Neb.  600,  85  N.  W.  840. 
State  v.  Flanagan,  25  R.  I.  369. 
State  v.  Kendig,  133  Iowa  164. 

27.  State  v.  Kendig,  133  Iowa  164. 

Sofield  v.  State,  61  Neb.  600,  800  N.  W.  840. 


181 

penalties  of  the  law  such  a  matter  would  be  for  him  to  bring  forward 
as  defense.-8 

Moreover,  generally  speaking,  exceptions  to  a  penal  or  quasipenal 
statute  do  not  limit  the  offense  therein  named  by  description  or  qualifi- 
cation, and  hence  cannot  be  considered  as  matter  to  be  negatively 
charged  in  the  indictment.  In  fact,  the  seeming  weakness  of  the  posi- 
tion that  such  matter  should  be  negatively  charged  is  fairly  well 
illustrated  when  it  is  remembered  that  if  a  negative  averment  must 
be  made  it  must  likewise  be  proven.  Now,  supposing  it  were  the 
proposition  that  a  physician  who  is  serving  in  the  Army  or  Navy  is 
excepted  under  the  law,  it  would  be  practically  impossible  for  a 
prosecuting  attorney  to  prove  the  negative  thereof,  that  is,  that  a 
defendant  was  not  a  qualified  official  of  the  army  or  navy  and  thereby 
free  from  the  disabilities  of  the  law,  that  is,  and  comply  with  the 
rules  of  evidence.  In  the  first  place  there  would  be  no  record  in  the 
given  state  to  which  he  could  appeal  to  prove  or  disprove  the  fact. 
Supposing  the  prosecuting  attorney  essayed  to  prove  the  allegation  by 
the  direct  testimony  of  an  official  from  Washington,  or  by  the  custodian 
of  the  proper  records  and  such  witnesses  declined  to  appear  and  testify. 
The  prosecuting  attorney  would  be  helpless.  His  court  having  no 
jurisdiction  over  said  persons  there  would  be  no  process  which  could 
compel  their  attendance.  Nor  could  the  said  attorney  prove  the  fact 
by  deposition  because  of  the  defendant's  constitutional  right  to  be  con- 
fronted by  the  witnesses  against  them.  And  again,  the  same  difficulties 
would  be  experienced,  supposing  it  were  attempted  to  prove  a  defendant 
not  a  legally  licensed  physician  of  any  other  state.  From  this  it 
would  seem  that  the  rule  making  such  fact  matter  for  affirmative 
defense  is  founded  clearly  on  reason.  For  the  sake  of  simplicity  and 
precision,  if  nothing  else,  the  state  should  not,  and  is  not  required  to 
aver  such  matters.29 

§  82. — Prior  Practitioner,  etc. 
Usually  it  is  unnecessary  to  aver  that  a  defendant  was  not  a  legal 
practitioner  at  the  time  a  given  act  was  passed,  or  that  he  was  not  the 
graduate  of  a  medical  college,  and  hence  was  entitled  to  practice  simply 
upon  registration  or  the  like  and  without  any  further  evidence  of 
qualification  than  the  proffer  of  his  prior  license  or  of  his  diploma, 
and  hence  an  averment  that  the  defendant  was  an  illegal  practitioner 


28.  Hale  v.  State,  58  Ohio  St.  576. 

State  v.  Welch,  129  N.  C.  579,  40  S.  E.  120. 
Antle  v.  State,  6  Tex.  App.  202. 

29.  State  v.  Flanagan,  25  R.  I.  369. 


182 

and  otherwise  following  the  statute  generally  would  be  sufficient. 
Again,  supposing  the  statute  required  that  the  registration  of  the  prior 
practitioner  be  within  ninety  days  after  the  passage  of  the  subsequent 
act,  the  averment  need  simply  be  that  the  required  period  had  expired, 
and  that  the  said  defendant  was  practicing  contrary  to  the  law.  But 
it  is  submitted  that  even  this  is  unnecessary,  and  that  the  charge  of 
illegal  practice  is  sufficient,  leaving  it  as  a  matter  of  affirmative  defense 
that  the  said  ninety  days  or  the  like  has  not  expired.30 

§  83. — Registration  in  County  of  Residence 
In  some  statutes,  for  example  the  Georgia  medical  practice  act 
in  force  in  1910,  it  was  required  that  physicians  register  their  licenses 
in  the  county  of  their  residence  prior  to  their  being  entitled  to  practice. 
Hence,  thereunder  in  charging  a  defendant  with  practicing  without  a 
license  it  must  not  only  be  alleged  in  addition  that  there  was  no  regis- 
tration, but  that  said  registration  was  not  had  in  the  county  of  the 
defendant's  residence.  If  the  accusation  fails  to  set  forth  that  the 
defendant  was  not  registered  in  the  county  of  his  residence  it  is  failing 
to  allege  an  essential  element  of  the  offense,  and  if  an  accusation  be 
thus  faulty,  clearly  it  may  be  quashed  on  demurrer.  To  avoid  this 
defect  all  that  is  essential  is  to  affirmatively  state  that  the  accused  was 
not  registered  in  the  county  of  his  residence  before  he  commenced  to 
practice.31 

§  84. — Itinerants 
It  was  argued  that  an  indictment  which  charged  a  defendant  with 
publicly  professing  to  treat  diseases  while  an  itinerant  vendor  of  drugs, 
and  so  forth,  without  a  license  was  defective  because  the  facts  consti- 
tuting the  offense  were  not  pleaded.  It  was  argued  that  it  was  neces- 
sary to  allege  that  drugs  were  sold  or  offered  for  sale  in  the  specified 
county  wherein  it  was  claimed  that  defendant  practiced,  but  this  it 
would  seem  was  unnecessary  as  the  offense  did  not  consist  in  the 
defendant's  having  sold  or  offered  for  sale  drugs  in  any  specific  county. 
Rather  the  offense  was  the  fact  of  the  defendant's  being  an  itinerant 
vendor  of  drugs  and  then  and  there  publicly  professing  in  the  said 
county  by  writing  or  printing  or  other  methods  to  cure  or  treat  diseases 
by  any  drug,  and  so  forth,  that  is,  any  itinerant  vendor  who  goes  into 
any  given  county  and  without  even  offering  to  sell  any  drugs,  yet  makes 
the  profession  of  curing  or  treating  disease  in  any  way  specified  by 
the  law  is  guilty  of  the  offense  contemplated  thereunder.     The  indict- 


30.  Hale  v.  State,  58  Ohio  St.  576,  51  N.  E.  154. 

31.  Jones  v.  State  (Ga.),  69  S.  E.  315. 


183 

ment  charged  that  the  defendant  did  by  "printing,  writing  and  other 
methods"  publicly  profess  to  treat  disease,  and  this  was  sufficient. :- 

§  85. — Miscellaneous 

(a)  Proving  More  Than  One  Infraction  in  One  Count — Defense. 
Usually  in  certain  misdemeanor  cases  testimony  may  be  introduced 

tending  to  show  numerous  infractions  of  the  law  falling  within  the 
period  of  limitation,  although  there  be  only  one  count  or  charge  in 
the  indictment  or  presentment.33 

There  is  no  objection  to  this  as  the  defendant  may  as  easily  prepare 
his  defense,  and  also  it  is  as  simple  in  pleading  former  acquittal  or 
conviction,  as  the  indictment  for  unlawfully  practicing  medicine  may 
be  taken  as  covering  all  special  instances  occurring  prior  to  the  indict- 
ment and  going  to  sustain  the  main  charge ;  hence  former  acquittal  or 
conviction  may  be  pleaded  in  lieu  of  any  subsequent  prosecution  of 
such  prior  acts.34 

(b)  Burden  on  Defendant. 

In  some  states  it  is  forbidden  to  use  the  title  "doctor"  under  cer- 
tain circumstances  and  the  burden  of  showing  the  right  to  the  use 
thereof  is  on  the  accused.35 

(c)  Conclusions. 

The  principal  point  to  remember,  it  would  seem,  in  drawing  an 
indictment  under  a  medical  practice  act,  is  to  follow  the  language  of 
the  statute  closely.  Deviations  therefrom  may  always  be  considered 
a  poor  policy,  however  liberal  a  given  jurisdiction  may  be.  It  is  always 
safest  to  let  the  court  be  liberal  in  its  construction  of  the  statute  rather 
than  of  the  indictment.  For  it  would  seem  that  a  court  would  have 
more  authority  to  take  the  statute  broadly  than  to  refuse  to  insist  that 
the  exact  statutory  offense  be  charged.  These  cases  would  also  seem  to 
show  that  the  courts  are  somewhat  constrained  to  a  liberal  policy  in 
regard  to  both  the  acts  and  the  indictments  thereunder,  and  it  would 
seem  that  there  is  some  justification  therefore,  at  least  in  regard  to 
the  acts,  as  the  statutes  are  not  purely  penal  measures,  but  police  regu- 
lations. As  such  it  is  difficult  to  specifically  define  an  offense  so  as 
to  cover  all  offenders.    Hence,  in  the  interest  of  the  public  health  and 


32.  State  v.  Blair,  92  Iowa  28. 

33.  Payne  v.  State,  112  Tenn.  587,  79  S.  W.  1025. 

34.  Payne  v.  State,  112  Tenn.  587,  79  S.  W.  1025. 

35.  Schaeffer  v.  State,  129  Wis.  459,   159  N.  W.  522. 
And  see 

Westbrook  v.  Nelson,  64  Kan.  436,  67  Pac.  884. 


184 

safety,  courts  should,  and  apparently  do,  in  many  cases  take  a  liberal 
view  and  permit  variations  from  the  strict  rules  of  pleading  which 
might  not  otherwise  be  allowed  or  sustained. 

2. — The  Proof 
(a)  Sufficiency  of  the  Evidence. 

§  86. — In  General 

It  may  be  said  that  the  rules  of  evidence  as  applicable  in  other 
cases  apply  as  well  to  cases  under  medical  practice  acts,  generally 
speaking,  and  that  in  proving  the  allegations  made  in  an  indictment 
any  evidence  is  admissible  which  will  go  to  sustain  the  point  at  issue, 
namely,  whether  the  defendant  was  practicing  medicine  without  a 
license.  As  to  the  quantum  of  proof  necessary  to  justify  a  verdict 
of  guilty  it  would  be  difficult  to  lay  down  any  hard  and  fast  rule. 
Broadly  speaking,  however,  in  "quasi-criminal"  proceedings  of  this 
nature  it  is  sufficient  to  show  the  guilt  of  the  accused  by  a  clear  pre- 
ponderance of  the  evidence.36 

In  a  certain  case  a  defendant  was  being  prosecuted  for  unlawfully 
engaging  in  the  practice  of  medicine  by  offering  to  treat  diseases  and 
effect  cures  thereof  for  money.  Under  the  information  and  plea  the 
main  issue  was  whether  or  no  said  defendant  was  treating  and  offer- 
ing to  treat  diseases  for  pay.  As  evidence  thereof  any  statement 
made  by  the  defendant  and  bearing  on  this  point  would  be  proper, 
and  in  fact  any  evidence  would  be  admissible  which  would  tend  to 
show  that  the  defendant  was  practicing  medicine.  As  a  circumstance 
showing  that  defendant  accepted  cheques  in  payment  for  treatments 
it  was  proper  to  introduce  a  cheque  for  $10.00  given  by  a  witness  to 
the  defendant  and  made  payable  to  the  latter  or  order,  and  containing 
the  words  "one  week's  medical  treatment  for  wife,"  which  cheque  was 
paid,  and  was  endorsed  on  the  back  with  the  defendant's  name.  It 
was  also  proper  for  the  witness  to  state  that  the  defendant  declined 
to  give  a  receipt  as  his  claim  was  not  enforcible  as  tending  to  prove 
that  said  defendant  was  aware  of  the  provisions  of  the  law,  and  that 
the  business  he  was  pursuing  was  prohibited  by  law.  Nor  was  it 
error  to  permit  the  witness  to  state  that  defendant  had  prescribed 
for  him  for  catarrh,  and  likewise  another  witness  could  testify  that 
he  had  called  on  the  defendant  and  asked  him  if  he  could  cure  his  wife 
of  neuralgia,  and  that  the  defendant  had  stated  that  he  could  and  what 
his  charges  would  be.37 


36.  Amer.  &  Eng.  Enc.  Law :  Title,  Evidence. 

37.  Singh  v.  State  (Tex.),  146  S.  W.  891. 


185 

Again,  in  a  suit  to  recover  the  penalty  prescribed  by  law,  two 
witnesses  testified  that  they  were  inspectors  of  the  board  and  that 
they  went  together  to  the  defendant's  home  on  a  certain  date.  One 
of  the  witnesses  asked  defendant  if  she  could  cure  cancer.  Defendant 
said  she  could,  and  asked  witness  if  she  had  one.  Witness  replied 
that  she  did  not  think  so,  but  that  she  had  a  scar  on  her  neck  and 
had  been  sick  for  a  long  time.  Defendant  then  got  a  magnifying  glass 
and  requested  the  witness  to  open  her  collar  so  that  she  might  examine 
the  scar.  The  witness  was  informed  that  it  was  not  cancer  but  a 
tumor  which  could  be  cured  if  directions  were  followed.  Defendant 
required  a  cash  deposit  and  a  further  payment  during  the  course  of 
treatment.  It  was  further  shown  that  defendant  diagnosed  the  case 
and  gave  assurances  of  an  ability  to  treat  patients  and  fixed  a  time  for 
a  first  treatment.  Further,  it  was  shown  that  defendant  demanded 
and  received  pay  for  the  consultation.  By  these  acts  defendant  was 
professing  to  treat  the  physical  ailments  of  another  and  contrary  to 
the  law.38 

Another  defendant  claimed  to  be  an  exponent  of  the  "functional 
ray"  system.  It  was  proved  that  he  examined  his  patients  and  made  a 
microscopic  test  of  their  blood  in  order  to  determine  whether  or  no, 
as  he  said,  his  methods  would  avail.  If  he  decided  to  give  treatments, 
the  patient  was  first  denuded  of  all  clothing  and  placed  in  a  closed 
cabinet  wherein  the  body  was  subjected  to  the  rays  of  two  large  electric 
arc  lights.  This  was  continued  for  about  thirty  minutes  or  until  the 
patient  was  in  a  profuse  perspiration.  The  patient  was  then  taken 
into  another  room  and  rubbed  off.  Local  applications  of  the  rays  were 
frequently  made  to  parts  affected.  Defendant  also  gave  medicines  of 
various  kinds,  and  while  he  did  write  prescriptions  it  was  mostly 
to  advise  patent  medicines.  He  kept  an  account  at  a  drug  store.  He 
was  known  as  "doctor,"  and  he  made  a  uniform  charge  of  $100.00  for 
the  light  treatment  but  claimed  he  charged  nothing  for  the  medicine. 
The  determinative  facts  against  him  were  the  holding  himself  out  to 
the  world  as  a  practitioner  of  the  healing  arts  and  his  soliciting  patients 
afflicted  with  disease  for  treatment  and  the  treatment  thereof.39 

And  again,  in  another  case  facts  were  submitted  to  show  that  the 
defendant  had  been  called  in  a  case  and  that  he  had  responded  thereto 
that  he  claimed  to  be  a  magnetic  healer;  that  the  party  on  whom  he 
called  was  sick  and  that  he  tried  to  effect  a  cure  by  his  system ;  that 
he  had  been  called  on  numerous  occasions  and  had  responded ;  that  he 


38.  People  v.  Dunn  (111.),  99  N.  E.  577. 

39.  O'Neil  v.  State,  115  Tenn.  427,  90  S.  W.  627. 


186 

advertised  as  a  doctor  and  made  out  death  certificates.  Said  evidence 
was  held  sufficient  to  sustain  a  charge  of  illegally  practicing  medicine.40 
It  is  to  be  generally  noticed  that  in  the  cases  cited  above  the  point 
emphasized  has  been  whether  there  has  been  a  sufficient  showing  that 
defendant  was  practicing  medicine.  This  question  was  affirmatively 
answered  in  all.  Now,  it  must  be  remembered,  however,  that  the 
charge  is  not  simply  the  "practicing  of  medicine"  but  the  "practicing 
of  medicine  illegally."  Hence  it  must  be  shown  that  defendant  had  no 
license  or  had  failed  to  register  it  in  the  county  of  his  residence  or 
the  like.  Clearly  such  proof  is  essential  to  support  the  charge  of 
practicing  medicine  illegally.41 

§  87. — Intent 

There  seems  to  be  a  rule  of  law  that  where  a  statute  creating 
a  criminal  offense  is  silent  concerning  the  intent  that  then  there  need 
be  no  allegations  thereof  in  an  indictment  drawn  under  the  said  law. 
Now,  it  would  appear  as  a  corollary  thereto  that  if  an  allegation  of 
intent  be  unnecessary  in  such  cases,  then  proof  of  intent  would  also 
be  unnecessary.42 

Especially  it  would  seem  should  this  be  true  under  the  medical 
practice  acts.  Yet  again,  it  might  seem  at  least  of  those  jurisdictions 
where  "continued  practice"  is  essential  to  constitute  a  violation  of 
the  law43  that  the  statute  was  requiring  something  similar  to  an  allega- 
tion and  proof  of  intent.  But  it  is  submitted  that  this  is  not  so.  Rather 
the  law  is  requiring  that  a  plan  or  general  design  shall  constitute  the 
violation  instead  of  isolated  instances  as  in  other  states.44 

In  point  of  fact,  it  would  seem  that  little  account  need  be  given 
to  this  matter  of  "intent."  As  intent  is  necessary  in  criminal  acts 
only,  and  while  medical  practice  acts  may  denominate  violations  of 
their  mandates  misdemeanors  and  thus  require  that  violations  be  dealt 
with  by  the  public  authorities  in  accordance,  to  a  certain  extent  at 
least,  with  the  rules  of  criminal  procedure,  nevertheless,  these  viola- 


40.  People  v.  Phippen,  70  Mich.  6. 

41.  Lewis  v.  State  (Tex.),  155  S.  W.  523. 
State  v.  Lawson,  40  Wash.  455,  82  Pac.  750. 
State  v.  Miller  (Iowa),  124  N.  W.  167. 
Watkins  v.  Paul,  87  111.  App.  278. 

State  v.  Kendig,  133  Iowa  164. 

State  v.  Yates  (Iowa),  124  N.  W.  174. 

People  v.  Boo  Doo  Hong,  122  Cal.  606,  55  Pac.  402. 

42.  Harding  v.  People,  10  Colo.  387,  15  Pac.  727. 
People  v.  Dudenhansen,  115  N.  Y.  S.  374. 

43.  Foo  Lun  v.  State,  84  Ark.  475,  106  S.  W.  946. 

44.  State  v.  Cotner  (Kan.),  127  Pac.  1. 


187 

tions  are  not  crimes  in  the  strict  sense  of  the  word.  Nor  are  these 
statutes  criminal.  But  we  are  dealing  with,  as  has  been  said  before, 
police  regulations  enacted  for  the  advancement  primarily  of  the  public 
morals,  health  and  safety.  That  this  is  the  nature  and  object  of  these 
laws  is  borne  out  in  a  great  part  by  the  underlying  spirit  of  the 
opinions  to  be  found  in  the  books.  Unconscious  as  this  expression 
of  opinion  may  be  it  is  nevertheless  in  evidence  and  hence  not  to  be 
disregarded  because  unconscious.  To  be  sure  there  are  cases  which 
pronounce  these  laws  penal  and  stand  for  a  strict  interpretation 
thereof,45  yet  on  the  whole  these  are  but  isolated  instances  among  the 
general  current  of  judicial  thought  and  should,  therefore,  carry  but 
little  weight.40 

However,  as  long  as  violations  are  denominated  misdemeanors,  thus 
requiring  indictments,  public  prosecutors  and  the  like,  so  long  will 
courts  be  compelled  to  adhere  more  or  less  rigidly  to  the  frame-work 
of  evidence  as  found  in  the  common  law.  True  a  line  of  demarcation 
may  be  drawn  by  denominating  medical  practice  acts  police  regula- 
tions, but  even  this  distinction  will  hardly  suffice  to  induce  all  juris- 
dictions to  allow  a  liberal  construction  of  these  measures  so  as  to 
conduce  to  an  effective  administration  of  the  law.  Hence  it  would  seem 
that  the  remedy  is  to  be  found  in  the  legislatures.  Which  is  simply 
this :  "do  not  draft  public  health  laws  as  penal  measures."  Clearly  a 
legislature  may,  and  should  change  the  common  law  if  need  be. 

§  88. — Sufficiency  of  Evidence  Under  Statutes  Forbidding 

Treatment  by  Any  System  Unless  Duly  Licensed 
When  the  statute  is  broad  in  its  language  it  will  be  much  simpler 
to  conduct  a  prosecution  thereunder.  In  the  first  place  the  informa- 
tion can  be  drafted  more  easily  and  in  the  second  place  the  proof  to 
be  adduced  thereunder  is  not  limited  so  strictly.  Hence  evidence  of 
facts  may  be  shown  which  might  not  be  permitted  under  more  narrow 
language.  Scientific  accuracy  is  impossible  in  the  prosecution  of  certain 
practitioners  and  only  generalizations  can  be  made.  This  is  more  par- 
ticularly true  in  attempting  to  prove  that  a  certain  system  is  the  practice 
of  medicine,  thus  when  treatment  by  any  means  is  forbidden  the  indict- 
ment may  be  drawn  charging  the  defendant  with  practicing  medicine 
illegally,  and  the  testimony  adduced  may  be  in  respect  to  the  special 
system  used  or  the  like.  Thus  a  witness  for  the  state  was  allowed 
to  testify  that  he  took  his  wife  to  the  defendant  to  be  treated  for  a 


45.  People  v.  Smith,  208  111.  31. 

46.  State  v.  Oredson,  96  Minn.  509. 


188 

tumor;  that  the  defendant  gave  both  present  and  absent  treatment; 
that  he  rubbed  the  affected  part,  waved  his  hands  and  told  the  patient 
that  she  would  be  cured.  The  absent  treatment  consisted  in  giving 
the  wife  a  picture  to  look  at  to  keep  the  mind  on  it  and  to  remain 
quiet.47 

Such  system  may  not  be  the  practice  of  medicine  in  the  common 
acceptation  of  the  word,  and  so  in  that  point  of  view  such  evidence 
might  be  improper.  But  when  a  person  professes  to  treat  disease  and 
advertises  to  that  end,  evidence  of  the  facts  would  seem  properly 
advisable.48 

§  89. — Opening  an  Office 

A  common  provision  found  in  many  statutes  is  that  making  the 
opening  of  an  office  an  autoptic  proference  of  practicing  medicine. 
This  fact,  together  with  proof  of  no  license  is  then  taken  as  sufficient 
to  sustain  a  conviction  of  illegally  practicing  medicine.  Hence  a 
person  who  opens  an  office  and  announces  to  the  public  a  willingness 
to  treat  consumption  with  some  patent  medicine  would  be  illegally 
practicing  medicine  supposing  such  person  be  unlicensed  or  unregis- 
tered or  the  like.49 

Generally  under  these  provisions  it  may  be  said  that  actual  treat- 
ment of  a  patient  need  not  be  proven.  Nor  would  the  question  of 
compensation  arise.  It  is  simply  necessary  to  prove  that  the  defendant 
opened  an  office  for  the  purpose  of  practicing  medicine  and  without 
the  proper  authority  therefor.50 

Similarly,  placing  a  doctor's  sign  over  the  door  or  the  like  would 
be  evidence  that  the  accused  had  opened  the  office  to  practice  medicine.51 

§  90. — Advertising  as  a  Physician 
Again,  many  of  the  laws  provide  in  some  way  that  advertising 
shall  have  a  potential  probative  value.  It  may  be  that  a  "holding  one's 
self  out"  is  made  to  constitute  the  illegal  advertising;  or  it  may  he 
advertising  the  ability  to  treat  and  cure ;  or  it  may  be  advertising  as  a 
doctor  per  se,  that  is,  using  the  title  "doctor"  or  the  like. 

Thereunder  a  complaint  may  charge  that  the  defendant  held  him- 
self out  as  a  physician  and  surgeon,  if  so,  it  will  be  sufficient  to  prove 


47.  Singh  v.  State  (Tex.),  146  S.  W.  891. 

-48.  Foo  Lun  v.  State,  84  Ark.  475,  106  S.  W.  946. 

49.  Territory  v.  Lotspeich  (N.  Mex.),  94  Pac.  1025. 

50.  Territory  v.  Lotspeich  (N.  Mex.),  94  Pac.  1025. 

51.  State  v.  Cotner  (Kan.),  127  Pac.  1. 
State  v.  Pollman,  51  Wash.  110,  98  Pac.  88. 


189 

that  he  held  himself  out  as  either.  For  there  is  but  one  offense  and 
that  is  the  claiming  to  be  a  physician  illegally."2 

Under  the  Iowa  law  it  would  seem  that  a  mere  public  profession 
of  an  ability  to  heal  does  not  subject  the  person  to  the  penalties  of 
the  law.  But  the  public  profession  must  be  made  under  such  circum- 
stances as  to  indicate  that  it  is  made  with  a  view  of  undertaking  to 
cure  the  afflicted.  And  one  does  this  in  announcing  to  the  public 
generally  his  claim  of  skill  in  the  art  of  healing  if  this  be  done  with 
the  purpose  of  treating  the  maladies  of  patients  who  may  engage  his 
attentions.03 

Proof  that  a  person  prescribes  remedies  and  the  like  would  not 
tend  to  prove  a  charge  of  professing  to  be  a  physician,  for  the  person 
may  be  prescribing  personally  as  a  friend.54 

But  any  one  who  holds  himself  out  as  a  physician  in  any  way 
whatsoever  would  be  liable  under  the  law.  Nor  would  it  seem  neces- 
sary to  actually  prove  that  the  defendant  did  treat  or  receive  com- 
pensation for  treating.  For  the  very  idea  of  this  provision  of  the  law 
is  to  avoid  the  necessity  of  being  compelled  to  submit  evidence  which 
it  is  often  times  impossible  to  prove,  as  for  example  a  physician  who 
advertises  the  cure  of  venereal  diseases.55 

Again  the  mere  fact  that  an  advertisement  appeared  in  a  paper 
under  the  same  name  as  that  of  an  accused  would  not  constitute  a 
prima  facie  case  against  such  person.  Nor  could  it  be  presumed 
therefrom  that  such  advertisement  was  authorized  by  the  accused.  It 
is  essential  that  a  causal  connection  be  established  between  the  adver- 
tisement and  the  accused.  And  further,  if  there  be  a  charge  that  he 
maintained  an  office  there  must  be  evidence  adduced  to  that  end. 
Profference  of  the  paper  containing  the  advertisement  would  be 
entirely  insufficient.56 

It  is  not  necessary,  however,  to  prove  that  the  defendant  adver- 
tised as  a  physician  per  se.  Evidence  that  he  advertised  the  capacity 
and  the  ability  to  treat  disease  is  sufficient,  and  especially  when  in 
conjunction  there  is  offered  testimony  that  compensation  was  received 
for  any  treatments.57 

Again,  evidence  that  the  defendant  holds  himself  out  as  a  physi- 
cian may  be  shown  by  the  facts  that  he  uses  medical  titles  on  his  door 


52.  Comm.  v.  St.  Pierre,  175  Mass.  48. 

53.  State  v.  Heath,  125  Iowa  585,  101  N.  W.  429. 

54.  State  v.  Bresee,  137  Iowa  673. 

55.  Singh  v.  State  (Tex.),  146  S.  W.  891. 

56.  State  v.  Dunham,  31   Wash.  636,  72  Pac.  459. 

57.  Singh  v.  State  (Tex.),  146  S.  W.  891. 


190 

and  on  a  card ;  that  he  has  office  hours ;  talks  of  his  patients  and  gives 
them  treatments ;  that  he  makes  diagnoses  and  prescribes  diets  and 
remedies  and  a  certain  course  of  conduct ;  that  he  asserts  an  ability  to 
cure  disease  without  the  use  of  drugs  and  that  he  is  paid  for  his 
services.58 

§  91. — Recommending  Medicine  for  a  Fee 

Frequently  statutes  have  included  in  them  a  provision  forbidding 
any  person  to  recommend  medicine  for  a  fee.  Thereunder,  evidence 
of  that  fact  would  tend  to  support  a  charge  of  practicing  medicine.59 

As  to  just  what  is  recommending  medicine  or  advising  the  use  of 
or  selling  appliances  intended  for  treatment  of  disease  is  sometimes  in 
doubt.  Proof  that  a  person  sold  spectacles  and  advised  them  to  cure 
headaches,  blurring,  itching  and  the  like,  was  not  deemed  sufficient  to 
sustain  a  charge  of  practicing  medicine  without  a  license  under  a 
clause  of  a  statute  containing  similar  language  to  the  above.00 

Nor  would  it  seem  that  proof  of  an  offering  of  a  device  to  cure 
rheumatism  is  sufficient  to  sustain  a  conviction.61 

And  again,  it  is  said  that  the  recommending  by  a  midwife  of  her 
remedies  to  cure  eye  troubles  of  infants  or  the  use  of  those  remedies 
is  not  evidence  that  could  tend  to  sustain  an  indictment  of  practicing 
medicine   illegally.02 

It  has  also  been  held  that  proof  of  merely  using  hypnotism  and 
massage  would  not  suffice,  but  advising  the  use  of  powders  and  plasters 
or  other  remedies  would  be  sufficient  evidence  to  render  a  person 
liable  under  the  law.03 

Perhaps  the  two  Illinois  cases  and  the  Massachusetts  case  are 
somewhat  extreme  as  being  based  on  an  improper  view  of  the  practice 
of  medicine  and  the  like.  Hence  evidence  that  medicine  was  recom- 
mended for  a  fee  or  any  system  advised  or  used  should  be  generally 
taken  as  tending  to  support  the  indictments. 

§  92. — Prescribing  for  a  Fee 
Under  these  laws  the  gist  of  the  misdemeanor  is  that  an  unlicensed 
person  has  practiced  medicine.     Hence  in  proving  the  charge  while 


58.  People  v.  Allcutt,  117  App.  Div.  546,  102  N.  Y.  Supp.  678. 
People  v.  Somme,  120  App.  Div.  20,  104  N.  Y.  Supp.  946. 
State  v.  Blumenthal  (Mo.),  125  S.  W.  1188. 

State  v.  Yegge,  19  S.  Dak.  234,  103  N.  W.  17,  69  L.  R.  A.  504. 
State  v.  Davis,  194  Mo.  485,  92  S.  W.  484,  4  L.  R.  A.  (N.  S.)   1023. 

59.  State  v.  Huff,  75  Kan.  585,  90  Pac.  279. 

60.  People  v.  Smith,  208  111.  31. 

61.  People  v.  Lehr,  196  111.  361. 

62.  Higgins  v.  McCabe,  126  Mass.  13. 

63.  State  v.  Lawson  (Del.),  65  Atl.  593. 


191 

testimony  to  the  effect  that  such  a  person  has  for  a  fee  prescribed  any 
drug,  medicine  or  other  agency  for  the  treatment  of  disease  is  not 
the  exclusive  substance  of  the  offense,  yet  it  is  one  kind  of  evidence 
of  guilt,  and  even  if  it  must  be  submitted  with  other  facts  it  has  a 
fairly  potential  probative  value.04 

A  physician  in  his  advertisements  stated,  "Positively  no  charges 
made  but  the  labor  is  worth  the  hire."  But  notwithstanding  this  the 
evidence  disclosed  that  a  large  number  of  his  patients  paid  him 
directly  or  indirectly.  One  paid  defendant's  wife  in  his  presence. 
Others  by  making  him  or  his  wife  presents.  Still  another  by  letting 
him  a  house,  rent  free,  for  several  months.  One  witness  whom  he 
treated  stated  that  in  discussing  the  treatment  and  his  charges  he  said : 

"'I  won't  charge  you  anything  (I  don't  know  how  many  times  he 
said  that)  nothing;  but  if  you  make  me  a  present  it  is  welcome.'  I 
made  him  a  present ;  it  was  in  money.  Sometimes  I  would  hand  him 
$1.00  and  sometimes  $2.00  or  something  like  that.  I  never  told  him, 
'here  is  your  money.'  I  just  put  it  in  his  hand  and  he  never  looked 
at  it.    He  just  put  it  in  his  pocket." 

This  evidence  was  introduced  together  with  the  facts  that  he 
actually  treated  patients  and  that  he  advertised  in  the  papers  his  ability 
as  a  physician,  and  that  he  called  himself  "doctor"  but  advertised  as 
"professor."  All  of  this  evidence  taken  together  was  considered  proper 
and  sufficient  proof  of  the  offense  as  charged.65 

When  the  essence  of  the  offense  under  the  statute  is  simply  an 
opening  of  an  office  or  claiming  to  act  as  a  physician  or  the  like,  then 
it  is  unnecessary  to  prove  either  treatment  of  a  patient  or  the  receipt 
of  compensation.  But  when  there  is  an  actual  treatment  of  or  pre- 
scribing for  the  sick  it  is  essential  that  proof  of  treatment  and  a 
receipt  of  compensation  either  directly  or  indirectly  be  proven.  And 
it  is  immaterial  from  whom  the  compensation  is  received  or  from 
whom  it  was  intended  that  it  should  be  received.  Evidence  adduced 
that  the  accused  received  pay  for  his  treatment  is  sufficient.66 

The  state  need  not,  in  some  jurisdictions  at  least,  prove  the  treat- 
ment of  a  specific  person  and  the  receipt  of  pay  from  that  person,  for 
in  these  states  it  would  seem  that  the  offense  alleged  in  the  statute  is 
for  treatment  for  pay.  Hence  the  state  need  simply  introduce  testi- 
mony to  the  effect  that  defendant  practiced  medicine  and  offered  to 
treat  disease  for  compensation.  And  especially  is  this  true  when  the 
defendant  claims  to  accept  free-will  offerings  only.     These  offerings 


64.  State  v.  Oredson,  96  Minn.  509. 

65.  Mueller  v.  State    (Tex.),  153  S.  W.  1142. 

66.  Territory  v.  Lotspeich  (N.  Mex.),  94  Pac.  1025. 
Singh  v.   State   (Tex.),  146  S.  W.  891. 


192 

may  be  taken  as  direct  compensation  within  the  purview  of  the  law, 
for  the  term  indirect  is  used  to  cover  evasions.67 

§  93. — Prima  Facie  Evidence 

Under  a  statute  making  the  record  of  the  county  clerk  prima  facie 
evidence  as  to  a  defendant's  possession  of  a  license  and  requiring  the 
recordation  to  be  had  in  the  county  of  his  residence,  a  conviction  can- 
not be  sustained  on  evidence  showing  only  that  the  defendant  prac- 
ticed medicine  in  a  given  county  and  that  no  license  had  been  filed  in 
that  county,  but  the  facts  proffered  must  be  that  he  was  a  resident 
in  the  county  in  which  he  was  practicing  or  that  he  was  not  registered 
in  the  county  in  which  he  resided.  This  is  because  no  registration  is 
required  in  the  county  to  which  he  may  happen  to  be  called.68 

It  is  not  necessary  for  the  state  to  show  that  a  defendant  was  not 
a  practicing  physician  prior  to  the  enactment  of  the  statute  under 
which  he  was  indicted  in  order  to  make  a  prima  facie  case.  It  is 
sufficient  simply  to  show  that  the  defendant  had  not  filed  his  license. 
This  may  be  done  by  the  county  clerk.  Evidence  of  this  nature  when 
made  to  constitute  a  prima  facie  case  is  sufficient  to  prove  the  existence 
of  the  license.  The  method  has  been  adopted  to  avoid  the  objection 
that  the  state  has  not  proved  the  fact,  and  also  makes  it  possible  to 
prove  the  fact  one  way  or  the  other.  It  may  be  rebutted  by  a  proffer 
of  the  license  by  the  defendant.69 

§  94. — Burden  on  Defendant 
The  state  having  proved  the  fact  that  the  defendant  was  practicing 
medicine  it  then  devolves  upon  the  latter  to  submit  evidence  in  rebuttal 
thereof.  Hence  the  burden  shifts  to  the  defendant  as  is  sometimes  said, 
and  he  must  tender  evidence  to  the  point  that  he  was  duly  authorized 
to  practice  medicine  under  the  law.  This  evidence  of  proof  of  qualifi- 
cation rests  on  defendant  and  he  must  submit  evidence  thereof  in 


67.  Singh  v.  State  (Tex.),  146  S.  W.  891. 
But  see 

State  v.  Cotner  (Kan.),  127  Pac.  1. 

See  also 

State  v.  Thompson,  48  Wash.  683,  94  Pac.  667. 

Richardson  v.  State,  47  Ark.  562,  2  S.  W.  187. 

State  v.  Hurt,  75  Kan.  585,  90  Pac.  279. 

Territory  v.  Newman  (N.  Mex.),  79  Pac.  706. 

68.  Haworth  v.  Montgomery  91  Tenn.  16. 
Mayfield  v.  Nale,  26  Ind.  App.  240. 
Murray  v.  Williams,  121  Ga.  63. 

Riley  v.  Collins,  16  Colo.  App.  280,  64  Pac.  1052. 

69.  State  v.  Dodson  (Wash.),  102  Pac.  872. 


193 

those  jurisdictions  when  a  recordation  is  not  made  prima  facie  evi- 
dence for  or  against  an  accused.70 

In  the  jurisdictions  which  have  provided  no  such  law  it  is  taken  as 
true  that  the  accused  has  no  license  should  he  fail  to  adduce  affirmative 
evidence  thereof.  And  further,  it  is  said  to  be  a  well-recognized  rule 
that  when  there  is  a  negative  averment  of  a  fact  which  is  peculiarly 
within  the  knowledge  of  the  defendant  that  the  burden  rests  with 
him  to   rebut  such  averment.71 

To  the  same  effect  is  the  rule  that  the  burden  rests  with  the  defen- 
dant to  allege  and  prove  the  possession  of  a  diploma  if  this  be  neces- 
sary to  the  lawful  practice  of  medicine.  Or  that  he  had  submitted 
to  an  examination  in  lieu  thereof.  And  it  is  given  as  a  reason  for 
this  that  such  evidence  is  not  accessible  to  the  state  and  is  peculiarly 
within  the  defendant's  knowledge  and  is  matter  under  his  control. 
Again,  when  a  defendant  attempts  to  justify  seemingly  illegal  practice 
by  alleging  a  license  from  a  foreign  state,  it  rests  with  defendant  to 
prove  that  the  laws  of  the  two  states  are  identical  in  order  that  the 
rule  of  comity  or  reciprocity  may  have  application  therein.72 

Supposing  a  defendant  seeks  to  allege  in  avoidance  of  his  act  that 
he  was  acting  under  the  direction  of  a  duly  licensed  physician,  it 
would  seem  necessary  that  the  defendant  submit  evidence  of  that  fact, 
else  it  is  to  be  presumed  to  the  contrary.73 

§  95. — Evidence  as  to  a  Particular  School  of  Medicine 
(a)   Osteopathy. 

Evidence  to  the  effect  that  a  defendant  uses  a  system  wherein  the 
treatment  consists  principally  in  rubbing,  pulling  and  kneading  with 
the  hands  and  fingers  on  certain  portions  of  the  body  and  in  flexing 
and  manipulating  the  limbs  of  those  afflicted  with  disease,  and  that 
the  object  of  this  treatment  is  to  remove  the  cause  of  the  trouble,  is 
proper  evidence  tending  to  support  an  indictment  of  practicing  medi- 
cine illegally.74 


70.  People  v.  Fulda,  52  Hun  (N.  Y.)  65,  4  N.  Y.  Supp.  945. 
Benham  v.  State,  116  Ind.  112. 

Comm.  v.  St.  Pierre,  175  Mass.  48. 
State  v.  Burke,  88  Iowa  661. 

71.  People  v.  Boo  Doo  Hong,  122  Cal.  606,  55  Pac.  402. 

72.  State  v.  Wilson,  62  Kan.  621. 

73.  Jones  v.  People,  84  111.  App.  453. 

74.  Little  v.  State,  60  Neb.  749. 

People  v.  Gordon,  194  111.  560,  62  N.  E.  858. 

People  v.  Jones,  92  111.  App.  447. 

State  v.  Gravett,  65  Ohio  St.  289,  62  N.  E.  325,  55  L.  R.  A.  791. 

Milling  v.  State  (Tex.),  150  S.  W.  434. 

Newman  v.  State  (Tex.),  124  S.  W.  956. 


194 

(b)  Christian  Science. 

It  was  shown  that  healing  and  curing  disease  was  attempted  by 
invisible  agency  and  by  aid  of  other  than  the  art  and  science  of  man, 
that  is  by  prayer  to  Deity  for  the  recovery  of  the  sick.  Further,  that 
the  accused  held  himself  out  as  able  to  relieve  the  ill  by  Divine  power 
and  did  actually  treat  the  sick  for  pay.  This  was  held  as  competent 
testimony  which  would  go  to  prove  the  illegal  practice  of  medicine.75 

(c)  Chiropractic. 

Proof  that  an  unregistered  and  unqualified  person  attempts  for 
pay  to  practice  chiropractic  by  pretending  to  adjust  the  spine  of  one 
afflicted  with  bodily  infirmities  or  who  advertised  to  treat  for  pay  by 
chiropractic  spinal  adjustment  persons  thus  afflicted,  would  be  evi- 
dence whereon  to  render  a  verdict  of  guilty  and  to  hold  such  person 
liable  for  the  penalty  of  the  law.70 

(d)  Suggestive  Therapeutics  and  Others. 

It  was  submitted  in  evidence  that  a  defendant  claimed  to  be  a 
graduate  of  an  institute  of  suggestive  therapeutics  and  that  in  an 
advertisement  he  appended  the  letters  "D.S.T."  to  his  name.  In  addi- 
tion thereto  the  evidence  tended  to  show  that  he  held  himself  out  and 
advertised  to  the  public  by  signs  in  his  office  and  by  publications  in 
the  local  newspapers  that  he  was  a  doctor  and  was  capable  and  com- 
petent to  successfully  treat  all  forms  of  chronic  diseases.  Further,  that 
he  notified  all  people  through  the  public  press  that  he  was  not  only  a 
doctor,  but  that  as  such  he  was  a  specialist  in  the  treatment  of  chronic 
diseases.  He  further  advised  them  that  he  was  capable  of  curing  the 
many  diseases  mentioned  in  his  advertisement  without  medicine  or 
surgery,  and  that  there  were  but  few  of  the  many  diseases  which  did 
not  yield  readily  to  his  drugless  treatment.  All  of  which  was  held  to 
constitute  "probata"  whereby  the  "allegata"  might  be  sustained.77 


74. — Continued.     See  also 

Smith  v.  Lane,  24  Hun  632. 

Hayden  v.  State,  81  Miss.  291,  33  So.  653. 

State  v.  Herring,  73  N.  J.  Law  34,  56  Atl.  670. 

State  v.  McKnight,  131  N.  C.  717,  42  S.  E.  580,  59  L.  R.  A.  187. 

State  v.  Biggs,  133  N.  C.  729,  46  S.  E.  401,  64  L.  R.  A.  139. 

75.  State  v.  Marble,  72  Ohio  St.  21,  73  N.  E.  1063. 
State  v.  Buswell,  40  Neb.  158,  24  L  R.  A.  68. 
State  v.  Mylod,  20  R.  I.  643,  40  Atl.  753  (contra). 

76.  State  v.  Johnson  (Kan.),  114  Pac.  390. 
State  v.  Zechman  (Iowa),  138  N.  W.  387. 
S warts  v.  Siveny  (R.  I.),  85  Atl.  33. 

77.  Witty  v.  State  (Ind.),  90  N.  E.  627. 
People  v.  Mulford,  125  N.  Y.  S.  680. 

Parks  v.  State,  159  Ind.  211,  64  N.  E.  862,  59  L.  R.  A.  190. 
Vital  Healing:     State  v.  Adkins  (Iowa),  124  N.  W.  627. 
Clairvoyant:    Bibber  v.  Simpson,  59  Me.  181. 


195 

b. — admissibility  of  evidence 
§  96. — In  General 
In  determining  as  to  the  admissibility  of  testimony  under  the  medi- 
cal practice  acts  the  broad  rules  of  evidence  will  in  general  apply. 
Thereunder  evidence  is  largely  admissible  or  inadmissible  in  accor- 
dance with  whether  or  no  it  tends  to  prove  the  point  at  issue.  Usually 
as  has  been  noted  the  gist  of  the  issue  is  whether  or  no  the  accused  has 
been  practicing  medicine  illegally.  Hence  in  a  broad  way  it  may  be  said 
that  the  state  may  introduce  into  evidence  any  facts  which  will  tend 
to  prove  the  affirmative  of  this  point.  Hereunder,  of  course,  incom- 
petent, irrelevant  and  immaterial  testimony  is  barred,  also  the  best 
evidence,  the  hearsay  and  any  other  rules  that  may  seem  applicable 
should  be  borne  in  mind.  Again  the  defendant  may  on  his  part  offer  in 
rebuttal  any  matter  tending  to  prove  the  negative,  subject  to  similar 
limitations.  In  attempting  to  ascertain  as  to  the  admissibility  of  testi- 
mony besides  an  examination  of  the  common  law  and  the  general 
statutory  rules  of  evidence,  it  is  always  well  to  look  into  the  special 
statutory  law  on  hand  with  care,  as  frequently  certain  matters  are 
made  to  constitute  a  prima  facie  case  or  the  burden  is  cast  upon  the 
defendant  or  the  like.78 

§  97. — Relevancy 
Under  an  indictment  which  charges  the  accused  with  practicing 
medicine  unlawfully  and  in  order  to  define  the  offense  under  the 
statute  sets  forth  the  treatment  of  a  particular  individual  on  a  specific 
date  and  under  a  false  name,  the  latter  fact  being  the  gist  of  the  mis- 
demeanor, it  is  error  to  admit  testimony  of  defendant's  relations  to  two 
or  more  persons,  one  more  than  two  months  prior  to  the  crime  charged 
in  the  indictment  and  one  eight  days  before.  This  is  on  the  basis,  it 
would  seem,  that  each  act  charged  is  a  separate  offense.  That  is  to 
say,  each  time  the  accused  rendered  medical  services  concurrently 
with  the  impersonation  of  another  practitioner  he  was  violating  the 
law.  Hence  to  prove  that  he  treated  others  whether  or  no  there  was 
an  illegal  concurrent  impersonation  would  in  no  way  tend  to  prove 
the  allegation  in  the  indictment  to  hand,  to-wit:  the  treatment  of  the 
person  named  in  the  indictment  on  the  day  alleged  and  under  a  false 
name.79 


78.  See    generally:     Wigmore,    "Evidence;"    Greenleaf,    "Evidence;"    Jones, 
"Commentaries  on  Evidence;"  Am.  &  Eng.  Enc.  Law,  "Evidence." 

79.  People  v.  Dudenhausen,  115  N.  Y.  Supp.  374. 


196 

In  the  same  way  in  those  jurisdictions  which  consider  each  person 
treated  as  a  distinct  violation  of  the  law  it  would  be  improper  to  admit, 
under  an  indictment  charging  an  accused  with  unlawfully  practicing 
medicine  without  a  license  and  naming  a  specific  person  treated,  evi- 
dence of  treatment  of  others  than  the  one  named.80 

While  in  those  jurisdictions  in  which  the  unlawful  practice  of 
medicine  without  a  license  is  considered  in  the  nature  of  a  continuing 
offense  it  would  seem  entirely  competent  to  admit  testimony  as  to 
any  person  treated  up  to  the  time  the  indictment  was  drawn.  Under 
this  rule  it  will  be  seen  that  each  treatment  is  not  considered  separately, 
but  all  are  taken  as  going  to  show  the  unlawful  act,  and  perhaps  as 
constituting  a  general  plan  or  design.81 

Especially  would  this  be  true  under  a  statute  which  makes  the 
"continued  practice"  without  a  license  unlawful.  With  such  a  pro- 
vision it  would  seem  absolutely  essential  to  show  that  more  than  one 
person  was  treated.82 

Again,  testimony  showing  that  defendant  is  a  graduate  of  more 
than  one  medical  college  and  that  he  has  practiced  for  more  than 
eighteen  years  in  a  foreign  state  would  not  of  itself  excuse  such  person 
of  practicing  in  some  other  state  without  a  license.83 

And  it  is  submitted  that  such  testimony  should  be  inadmissible 
because  incompetent  to  refute  the  charge  of  illegal  practice  unless  the 
accused  be  able  to  establish  the  fact  under  the  law  of  the  given  state 
that  the  requirements  of  qualification  in  the  two  states  are  substan- 
tially identical. 

It  seems  that  evidence  is  frequently  admitted,  as  that  an  accused 
effected  cures  by  his  system,  to  which  it  is  submitted  objection  should 
be  made  and  sustained.  For  to  what  purpose  is  the  fact  that  a  system, 
whatever  it  may  be,  whether  osteopathic,  chiropractic  or  what  not,  can 
cure  the  diseases  supposing  the  person  using  the  system  be  unlicensed  ? 
All  such  evidence  is  inadmissible  because  incompetent  to  prove  the 
negative  of  the  point  at  issue,  and  should  be  excluded  from  the  jury.84 
It  would  seem  somewhat  comparable  to  a  case  when  a  physician  had 
taken  a  note  from  a  patient  and  had  subsequently  sold  the  note.  It 
developed  that  the  physician's  treatment  of  the  case  was  unsuccessful 
and  the  patient  filed  a  suit  sounding  in  tort  for  the  alleged  malpractice. 
The  patient  was  allowed  to  introduce  into  evidence  the  fact  that  the 
physician  had  taken  the  note  and  sold  it.     The  admission  of  the 


80.  State  v.  Cotner  (Kan.),  127  Pac.  1. 

81.  Payne  v.  State,  112  Tenn.  587,  79  S.  W.  1025. 

82.  Foo  Lun  v.  State,  84  Ark.  475,  106  S.  W.  946. 

83.  Dodge  v.  State,  17  Neb.  140,  22  N.  W.  348. 


197 

evidence  was  declared  erroneous  as  tending  to  prejudice  the  jury  and 
as  not  being  logically  relevant  to  the  issue  at  bar.80 

And  so  it  should  be,  it  is  submitted,  with  prosecutions  under  a 
medical  practice  act,  any  fact  which  tends  to  obscure  the  issue, 
prejudice  the  jury  or  the  like  should  be  excluded  for  irrelevancy  or 
incompetency  or  the  like.  And  belonging  to  this  class  it  would  seem 
are  such  cases  as  an  attempt  by  the  defendant  to  prove  that  he  was 
administering  a  domestic  remedy  gratuitously  when  it  had  already  been 
shown  that  he  had  accepted  pay  for  his  services.80 

Evidence  that  an  accused  was  acting  through  or  under  a  duly 
licensed  physician  after  the  state  has  established  the  fact  that  the  act 
of  the  accused  was,  per  se,  the  practice  of  medicine,  as  when  a  licensed 
physician  and  an  unlicensed  physician  divide  the  fees  equally  and  the 
like.87 

Testimony  that  an  accused  was  simply  a  vendor  of  patent  medicines 
under  a  statute  permitting  the  itinerant  vending  thereof,  supposing  it 
established  that  he  was  in  reality  holding  himself  out  as  a  physician 
as  by  diagnosing  cases  and  prescribing  remedies  therefor.88 

Finally,  any  statements  that  the  accused  healed  by  Divine  power 
and  the  like.  For  the  accused  is  not  indicted  for  healing  by  Divine 
power,  but  because  he  is  unlicensed.  Hence  evidence  simply  tending 
to  show  that  the  accused  is  practicing  a  religion  also,  in  no  way  apper- 
tains to  the  issue.  In  those  jurisdictions  excepting  Christian  Scientists 
and  the  like  from  the  application  of  the  law,  it  would  seem  that  this 
policy  perhaps  cannot  be  adopted.  But  it  is  submitted  that  these  cults 
should  not  be  excepted.  There  is  no  reason  why  they  cannot  secure 
a  license  as  well  as  any  other  person  who  purports  to  treat  human  ills. 
If  this  be  done  the  rule  of  exclusion  as  to  testimony  of  this  nature 
may  be  made  universal.  It  can  be  granted  in  all  cases  that  an  accused 
is  possibly  practicing  a  religion,  however,  he  is  also  practicing  medi- 
cine. To  practice  his  religion  no  license  is  required,  but  to  practice 
medicine  one  must  qualify  under  the  law.  If  this  be  required  of  all 
then  the  fact  that  one  is  unlawfully  practicing  medicine  without  a 
license  it  cannot  be  shown  in  evidence  that  the  treatment  used  is 
simply  a  religious  custom  as  such  evidence  would  be  incompetent.89 


84.  State  v.  Miller  (Iowa),  124  N.  W.  167. 

85.  Cozine  v.  Moore  (Iowa),  141  N.  W.  424. 

86.  State  v.  Huff,  75  Kan.  585,  90  Pac.  279. 

87.  State  v.  Paul,  56  Neb.  369,  76  N.  W.  861. 
Springer  v.  District  of  Columbia,  23  App.  D.  C.  "59. 

88.  State  v.  Van  Doran,  109  N.  C.  864,  14  S.  E.  32. 

89.  Bennett  v.  Ware,  4  Ga.  App.  293. 
Singh  v.  State   (Tex.),  146  S.  W.  891. 
State  v.  Peters  (Kan.),  123  Pac.  751. 


198 

And  finally,  it  is  not  competent  to  show  in  rebuttal  that  other  physi- 
cians have  no  certificate  or  have  not  stood  an  examination  or  are 
practicing  illegally.  Clearly  that  others  violate  the  law  is  no  justifica- 
tion for  another.     Multitudi  erratium  non  parit  errori  patrocinum.90 

§  98/ — Best  Evidence 

If  the  state  has  proved  a  prima  facie  case  against  the  accused  it 
is  incompetent  for  him  to  attempt  to  defend  under  a  mere  statement 
that  he  has  a  license  as  this  is  but  hearsay  and  not  the  best  evidence. 
The  diploma,  if  of  any  value,  must  itself  be  offered  in  evidence.91 

But  a  diploma  which  has  not  been  signed  by  the  proper  authorities 
is  inadmissible  as  being  an  invalid  document  and  hence  entirely  incom- 
petent to  show  that  defendant  was  a  legal  practitioner.92 

In  the  same  way  a  diploma  from  a  medical  college  may  be  held 
as  inadmissible  in  evidence  if  it  fail  to  show  on  its  face  that  it  is  from 
a  proper  school  that  the  requisite  course  was  given,  that  there 
was  a  proper  attendance  and  the  degree  granted  the  holder.  It  is 
said  that  an  instrument  which  fails  to  set  forth  these  facts  cannot  be 
regarded  as  a  diploma  or  certificate  under  the  law.93 

Since  it  is  unnecessary  in  many  jurisdictions  for  the  state  to  show 
that  the  defendant  has  no  license  it  would  therefore  seem  to  be 
unprejudicial  error  to  admit  the  testimony  of  a  statistical  clerk  who 
kept  the  records  of  the  board  to  the  effect  that  he  could  not  find  any 
record  of  a  given  defendant  as  a  licensed  practitioner.  However,  the 
testimony  would  seem  to  be  open  to  technical  objection  that  such  evi- 
dence is  not  the  best  that  could  be  offered.94 

It  would  seem  improper  for  the  defendant  to  offer  in  evidence  a 
pamphlet  purporting  to  be  written  and  signed  by  the  founder  of  any 
particular  cult  as  an  exposition  of  that  system  of  healing  for  the  pur- 
pose of  showing  the  method  of  healing  used  by  the  defendant.  Such 
testimony  would  seem  objectionable  as  being  the  printed  statement  of 
an  irresponsible  and  unknown  person  and  one  who  is  not  in  court  for 
the  purpose  of  cross-examination.  Clearly  it  is  not  the  best  evi- 
dence. The  defendant  must  be  put  on  in  his  own  defense  and  then 
possibly  the  pamphlet  might  be  used  as  corroborative  testimony  if 
it  can  be  properly  proven  and  identified.95 

90.  Brooks  v.  State,  146  Ala  153. 

91.  McAllister  v.  State,  156  Ala.  122,  47  So.  161. 

92.  Brooks  v.  State,  146  Ala.  153. 

93.  Ch.  68,  Kansas  Session  Law,  1870. 
Sec.  2302,  General  Statutes,  1899. 
State  v.  Wilson,  62  Kan.  621. 

94.  Comm.  v.  Clymer,  217  Pac.  302,  66  Atl.  560. 

95.  People  v.  Trenner,  144  111.  App.  275. 


199 

It  would  seem  entirely  proper  for  the  state  to  show  that  a  defendant 
professed  at  certain  meetings  that  he  could  cure  rheumatism,  kidney 
and  other  diseases.  Also  that  he  circulated  advertisements  to  the 
same  effect,  and  to  read  such  advertisements  into  the  evidence.  All 
such  testimony  would  seem  competent  to  prove  that  a  defendant  is 
violating  the  law.00 

§  99. — Expert  Witnesses 

It  would  seem  that  an  expert  witness  can  not  properly  he  asked  to 
give  an  opinion  on  the  point  which  is  directly  in  issue  as  this  is  . 
matter  for  the  jury.  Thus  it  is  manifestly  improper  to  ask  a  physi- 
cian whether  or  no  in  his  opinion  a  person  who  prescribes  a  certain 
medical  device  as  a  cure  for  rheumatism  is  practicing  medicine.  The 
statute  defines  "practice  of  medicine,"  hence  it  is  a  question  for  the 
jury  and  not  for  a  witness,  not  even  an  expert  witness  whether  cer- 
tain acts  properly  constitute  the  practice  of  medicine.97 

Expert  evidence  is,  however,  admissible  to  prove  what  a  midwife 
does  or  is  expected  to  do  as  such.  But  only  so  that  the  court  may 
see  whether  her  acts  or  any  of  them  are  regarded  as  the  practice  of 
medicine  in  any  of  its  branches.  Such  witnesses  cannot  testify 
whether  or  no  a  person  is  practicing  medicine  or  whether  certain  acts 
constitute  the  practice  of  medicine.  The  questions  are  either  matter 
of  fact  for  the  jury  or  are  questions  of  law  for  the  court  if  not  in 
dispute  between  the  parties.  It  is  contrary  to  the  plain  intent  of  the 
law  to  allow  experts  to  testify  that  language  employed  in  a  statute 
does  not  comprehend  acts  confessedly  performed  by  a  defendant.98 

§  100. — Ordinary  Witnesses 

It  is  within  the  discretion  of  the  trial  judge  to  allow  the  prose- 
cuting attorney  to  recall  a  witness  after  the  arguments  have  closed 
to  prove  an  admission  of  the  defendant  that  he  had  no  license,  since 
as  a  matter  of  fact  the  burden  of  proof  is  on  the  defendant  to  prove 
its  existence." 

Nor  is  it  reversible  error  to  allow  the  prosecuting  attorney  to 
examine  witnesses  who  were  not  before  the  grand  jury  and  whose 
names  were  not  on  the  indictment  especially  if  their  testimony  remains 
uncontroverted  and  in  a  way  admitted  by  the  defendant.100 


96.  People  v.  Blue  Mountain  Joe,  129  111.  370. 

97.  People  v.  Lehr,  196  111.  361. 

98.  Comm.  v.  Porn,  196  Mass.  326. 

99.  State  v.  Burke,  88  Iowa  661. 
100.  State  v.  Burke,  88  Iowa  661. 


200 

§  101. — Miscellaneous 
(1)  non-compliance  with  the  law  as  a  defense  in  tort 
The  gravamen  of  an  averment  was  that  the  defendant  was 
employed  as  one  professing  to  have  skill  and  experience  in  treating 
cancer.  It  was  shown  that  he  had  so  held  himself  out  and  that  the 
plaintiff  had  relied  thereon.  He  was  therefore  within  the  rule  which 
requires  the  exercise  of  that  degree  of  skill  and  care  usually  exercised 
by  the  general  physician  in  that  particular  practice.  Nor  would  the 
fact  that  the  defendant  showed  he  had  failed  to  comply  with  the  law 
and  was  therefore  not  a  legally  licensed  physician  be  evidence  to  rebut 
this  presumption  once  established.101 

(2)  RECOVERY  FOR  MEDICAL  SERVICES 

A  physician  cannot  recover  for  medical  treatment  unless  he  can 
show  that  he  has  complied  with  the  statutes  regulating  the  practice  of 
medicine.102 

But  in  an  action  to  recover  for  services  rendered,  plaintiff  can 
establish  a  presumption  that  he  was  duly  licensed  and  it  then  devolves 
upon  the  defendant  to  rebut  this  presumption.103' 

The  reason  for  this  is  that  the  law  presumes  a  compliance  with 
a  statute  when  a  failure  to  have  done  so  is  made  a  misdemeanor  by 
the  enactment  in  question,  and  hence  any  party  relying  on  any  failure 
to  obey  the  law  as  a  defense  must  establish  such  fact  affirmatively.104 

(3)    FORMER  JEOPARDY 

The  test  to  determine  whether  or  no  to  sustain  a  plea  of  former 
jeopardy  is  by  examining  the  face  of  the  indictments  to  see  whether 
the  evidence  necessary  to  sustain  a  conviction  in  one  would  likewise 
sustain  a  conviction  under  the  second.  Frequently  a  person  may  offend 
against  a  medical  practice  act  divers  times,  hence  indictments  may  be 


101.  Musser  v.  Chase,  29  Ohio  St.  577. 

102.  Wooley  v.  Bell,  33  Tex.  Civ.  App.  399. 

103.  Leggat  v.  Carrick,  35  Mont.  91. 

104.  City  v.  Wood,  24  111.  App.  40. 
Williams  v.  People,  20  111  App.  92. 
McPherson  v.  Cheadell  (N.  Y.),  24  Wend.  15. 
Thompson  v.  Sayre  (N.  Y.),  1  Denio  175. 
Pearce  v.  Whale,  5  Barn.  &  Cres.  758. 

Jo  Daviess  Co.  v.  Staples,  108  111.  App.  539. 

Lacy  v.  Kossuth,  106  Iowa  16. 

Dickerson  v.  Gordy  (La.),  5  Rob.  489. 

Lyford  v.  Martin,  79  Minn.  243. 

Cather  v.  Damerell  (Neb.),  99  N.  W.  35. 

Rider  v.  Ashland,  87  Wis.  160. 

Good  v.  Lasher,  99  111.  App.  653. 


201 


drawn  charging  separate  offences  to  a  subsequent  one  of  which  a 
prior  conviction  will  be  no  bar.  Perhaps  in  those  jurisdictions  which 
hold  that  any  act  committed  up  to  the  time  of  the  indictment  is  proof 
under  the  indictment  it  would  be  possible  to  sustain  a  plea  of  former 
conviction  or  acquittal  to  a  subsequent  indictment  for  one  of  those 
acts.  Not  so,  however,  in  a  jurisdiction  dealing  with  each  act  as  a 
separate  offense.105 

B.    UNPROFESSIONAL    CONDUCT 

i.  The  Revocation  of  a  License 
(a)  Procedure. 

§  102. — The  Right  to  Practice  Medicine 
Whether  the  right  to  practice  medicine  be  classed  as  a  property 
right  strictly  speaking,  or  as  a  mere  privilege  is  immaterial.     But  the 
right  whatever  its  nature,  is  a  valuable  right  which  cannot  be  taken 
away  without  due  process  of  law.10G 

Moreover,  the  vocation  of  a  physician  is  in  itself  a  lawful  one, 
and  the  right  of  any  person  to  engage  therein  is  subject  only  to  such 
restrictions  as  the  legislature  may  impose  in  the  exercise  of  its  gen- 
eral police  power.  Therefore,  the  right,  whatever  its  specific  nature 
may  be,  to  engage  in  this  practice  is  a  qualified  one,  even  that  is  not 
to  be  arbitrarily  and  without  reason  denied,  but  only  under  due  process 
of  law.107 

§  103. — Due  Process  of  Law 
Now  due  process  of  law  is  not  necessarily  judicial  proceedings,  but 
a  uniform  rule  and  a  uniform  process  of  ascertaining  and  determining 
qualifications  as  prescribed  by  law;  a  rule  which  operates  equally  on 
all  persons,  affording  to  all  persons  the  right  to  establish  their  quali- 
fications before  the  board :  a  rule  which  gives  an  accused  timely  notice 
and  full  opportunity  to  defend.    This  is  due  process  of  law. 


105.  State  v.  Van  Buren  (S.  C),  68  S.  E.  568. 
Payne  v.  State,  112  Tenn.  587,  79  S.  W.  1025. 
State  v.  Cotner  (Kan.),  127  Pac.  1. 

As  to  sufficiency  of  indictment  and  proof  under  law  forbidding  advertis- 
ing places  where  illegal  operations  may  be  performed  on  pregnant 
women  such  as  abortions  and  the  like,  see  Comm.  v.  Hartford,  193 
Mass.  464. 

106.  Smith  v.  Board  (Iowa),  117  N.  W.  1116. 

Matthews  v.  Murphy,  23  Ky.  750,  63  S.  W.  785,  54  L.  R.  A.  415. 
People  v.  McCoy,  125  111.  289. 

107.  State  v.  State,  32  Minn.  324,  50  Am.  Rep.  575,  20  N.  W.  238. 
Matthews  v.  Murphy,  23  Ky.  750,  63  S.  W.  785,  54  L.  R.  A.  415. 
Board  v.  Ross,  191  111.  87. 


202 

Again  under  the  exercise  of  the  general  police  powers  of  a  state 
it  often  happens  that  a  person's  enjoyment  of  his  property  is  materi- 
ally interfered  with  and  restricted,  yet  it  was  never  held  that  this 
exercise  of  the  police  power  must  be  by  judicial  proceedings  in  court 
in  order  to  constitute  due  process  of  law.  A  full  and  fair  trial  in 
any  tribunal  which  a  legislature  is  competent  to  establish  is  of  the 
essence  of  due  process  of  law.103  Hence  a  revocation  of  a  license 
need  not  be  under  an  order  of  court  to  constitute  due  process  of  law 
but  can  be  had  by  a  board  properly  constituted. 

§  104.— The  Nature  of  the  Power  and  of  the  Action 
The  ascertainment  and  determination  of  the  qualifications  to  prac- 
tice medicine  and  proceedings  taken  to  revoke  a  license  by  a  board 
of  competent  experts  appointed  for  that  purpose  is  not  an  exercise  of 
power  which  would  belong  more  appropriately  to  the  judicial  depart- 
ments of  the  government.  Such  an  exercise  of  power  does  not  touch 
upon  judicial  power.109 

The  determination  of  these  and  kindred  questions  may  constitu- 
tionally be  and  is  very  properly  devolved  everywhere  upon  boards  of 
inspection  composed  of  experts  in  the  particular  occupation  in  ques- 
tion.109 Again,  many  executive  officers,  even  those  who  are  spoken 
of  as  purely  ministerial  officers,  act  judicially  in  the  determination  of 
facts  in  the  performance  of  their  official  duties.  Nor  in  so  doing  do 
they  exercise  judicial  power  as  that  phrase  is  commonly  used  and  as 
it  is  used  in  the  several  organic  acts,  in  conferring  judicial  power 
upon  courts.  For  example,  power  conferred  on  medical  boards  would 
seem  in  no  wise  different  in  character  from  that  exercised  by  boards, 
to  examine  public  school  teachers,  tax  assessors,  boards  of  equaliza- 
tion; a  county  surveyor  in  fixing  a  boundary  line;  or  the  action  of 
numberless  other  officers  or  boards  in  making  investigations  and 
decisions  in  matters  committed  to  them.110 


108.  State  v.  State,  34  Minn.  387. 
People  v.  Hasbrouck,  11  Utah  291. 
Smith  v.  Board  (Iowa),  117  N.  W.  1116. 
People  v.  McCoy,  125  111.  287. 

109.  People  v.  Hasbrouck,  11  Utah  291. 
State  v.  Webster,  150  Ind.  607. 
Board  v.  Eisen  (Ore.),  123  Pac.  52. 
State  v.  Goodier,  195  Mo.  551. 

Meffert  v.  State,  66  Kan.  710,  72  Pac.  247. 
Smith  v.  Board  (Iowa),  117  N.  W.  1116. 
Munk  v.  Frink,  81  Neb.  631,  116  N.  W.  525. 

110.  People  v.  Hasbrouck,  11  Utah  291,  39  Pac.  918. 
State  v.  Webster,  150  Ind.  602. 


203 

Again  neither  is  the  circumstance  that  an  appeal  is  allowed  from  a 
decision  of  the  board  an  indication  that  its  action  is  judicial.  The 
right  of  appeal  from  the  action  of  boards  in  their  administrative  char- 
acter is  frequently  conferred  by  statute.  In  such  case  the  appeal  is 
not  permitted,  because  the  action  of  the  board  is  considered  judicial, 
but  it  is  granted  as  a  method  of  getting  the  matter  involved  before 
a  court  that  it  may  be  determined  judicially.111 

Clearly  a  board  of  examiners  or  the  like  is  not  a  court,  nor  is  it 
a  judicial  tribunal.  For  oftentimes  it  can  issue  no  writ;  can  try  no 
case  and  can  render  no  judgment.  It  is  merely  a  governmental  agency 
in  many  states  exercising  ministerial  functions.112 

While  in  other  jurisdictions  it  may  partake  more  of  a  judicial  char- 
acter, and  hence  the  power  which  it  exercises  in  those  states  may  be 
denominated  quasi-judicial.113 

But  frequently  judicial  power  is  almost,  if  not  entirely  foreign  to 
these  boards.  And  in  such  cases  the  board  is  left  to  investigate  charges 
and  the  like  as  best  they  may.  In  such  cases  especially,  it  would  seem 
that  this  power  is  not  judicial  but  simply  ministerial  or  at  most 
quasi-judicial.114 

Formerly  boards  were  authorized  to  act  "after  giving  the  accused 
opportunity  to  be  heard."  And  these  were  the  only  words  which 
might  suggest  a  trial,  and  it  may  be  seen  that  they  fall  far  short  of  a 
judicial  trial.  More  recently  though,  numerous  acts  have  given  much 
broader  power  judicially  to  the  boards.  But  even  so  it  is  submitted 
that  the  power  so  vested  is  in  no  proper  sense  judicial  power  such 
as  is  vested  in  the  courts.115 

Generally  investigations  before  these  boards  for  the  revocation  of 
a  license  are  not  to  be  carried  on  in  observance  of  the  technical  rules  of 
evidence  and  of  the  law.  As  usually  the  boards  are  composed  prin- 
cipally, if  not  entirely,  of  physicians,  or  laymen  as  far  as  the  law  is 
concerned,  and  clearly  such  a  tribunal  cannot  be  expected  to  be 
qualified  in  the  law,  so  that  a  compliance  with  technical  rules  may  be 
required.  Rather  it  is  simply  the  intention  of  the  legislature  to  adopt 
summary  proceedings  by  which  the  morals  of  the  people  and  the  dig- 
nity of  the  profession  may  be  protected.  And  to  that  end  the  law 
usually  requires  in  the  main  timely  notice  of  the  charges  preferred 


111.  State  v.  Webster,  150  Ind.  602. 
Board  v.  Eisen  (Ore.),  123  Pac.  52. 

112.  State  v.  Goodier,  195  Mo.  551. 

113.  State  v.  Webster,  150  Ind.  607. 

114.  State  v.  Goodier,  195  Mo.  551. 

115.  State  v.  Goodier,  195  Mo.  551. 

Smith  v.  Board  (Iowa),  117  N.  W.  1116. 


204 

and  of  the  date  of  the  hearing,  together  with  full  and  ample  oppor- 
tunity to  defend116 

And  further  these  hearings  being  summary  and  before  a  quasi- 
judicial  tribunal  only  may  be  carried  on  without  the  intervention  of  a 
jury.117 

§  105. — Procedure  Necessary 

In  a  trial  under  a  complaint  for  unprofessional  conduct  it  is  not 
necessary  that  the  proceedings  be  conducted  with  that  degree  of  exact- 
ness which  may  be  required  in  a  trial  for  criminal  offense  in  an  ordi- 
nary tribunal  of  justice.118 

But  it  is  essential  that  the  accused  have  a  hearing  on  the  specific 
charge  after  a  reasonable  notice  of  the  time  and  place  of  hearing  has 
been  given.  In  this  hearing  or  trial  the  accused  must  be  afforded  full 
opportunity  to  present  a  defense  to  the  charges  made.  Nor  can  there 
be  any  conviction  unless  on  competent  evidence.119 

Usually  it  is  prescribed  by  statute  that  a  certificate  or  license  can- 
not be  revoked  except  at  a  regular  meeting  or  at  a  special  meeting  of 
which  notice  must  be  duly  given  the  accused.  And  it  is  not  enough 
that  the  accused  chance  to  have  a  notice  or  that  he  may  as  a  matter 
of  favor  have  a  hearing.  The  law  must  require  that  the  notice  be 
actually  served  and  that  a  full  and  impartial  hearing  be  duly  afforded 
the  accused.120 

However,  if  the  board  has  proceeded  with  the  hearing  and  has 
taken  proper  testimony  and  has  given  the  respondent  an  opportunity 
to  appear  in  person  or  by  counsel  to  cross  examine  the  witnesses,  and 
to  introduce  testimony  in  his  own  behalf  and  has  passed  on  the  suffi- 
ciency of  the  evidence  so  taken,  then  such  proceedings  of  a  board 
will  usually  be  upheld  on  an  appeal  to  a  regular  court  of  law.121 


116.  Meffert  v.  Board,  66  Kan.  710,  72  Pac.  247. 
Smith  v.  Board  (Iowa),  117  N.  W.  1116. 

117.  Munk  v.  Frink,  81  Neb.  631,  116  N.  W.  525. 
Gully  v.  Territory  (Okla.),  91  Pac.  1037. 

State  v.  District  Court,  39  Mont.  134,  101  Pac.  961. 

118.  Munk  v.  Frink,  81  Neb.  631,  116  N.  W.  525. 
Iowa  v.  Schrader,  87  Iowa  659. 

119.  Munk  v.  Frink,  81  Neb.  631,  116  N.  W.  525. 
Matthews  v.  Hedlund,  82  Neb.  825,  119  N.  W.  17. 
Iowa  v.  Schrader,  87  Iowa  659. 

120.  Smith  v.  Board  (Iowa),  117  N.  W.  1116. 
Iowa  v.  Schrader,  87  Iowa  659. 

121.  Munk  v.  Frink,  81  Neb.  631,  116  N.  W.  525. 
Mathews  v.  Hedlund,  82  Neb.  825,  119  N.  W.  117. 
Smith  v.  Board  (Iowa),  117  N.  W.  1116. 

Iowa  v.  Schrader,  187  Iowa  659. 

But  see 

People  v.  McCoy,  125  111.  289. 

Macomber  v.  Board,  28  R.  I.  3,  65  Atl.  263. 


205 

But  it  would  seem  that  it  may  sometimes  be  implied  that  a  notice 
be  given  the  accused,  and  this  implication  is  sufficient.122 

That  is  to  say,  the  statute  need  not  specifically  state  that  notice 
be  given  an  accused  in  order  that  the  proceedings  taken  under  it 
may  be  upheld,  but  the  requirement  of  giving  notice  may  at  times  be 
fairly  implied  from  the  general  language  of  the  statute  and  this  is 
sufficient  to  support  the  validity  of  the  board's  action.1-1 

However,  it  is  essential  that  de  facto  service  he  had  on  the  accused 
as  to  notice  of  the  hearing  and  an  affidavit  affirming  such  service  is 
entirely  insufficient  to  overcome  the  statement  of  the  accused  that  he 
was  not  so  served.124  And  thus  a  record  which  fails  to  show  de 
facto  service  may  be  taken  as  defective,  while  a  record  which  shows 
a  specific  charge,  notice,  hearing  and  the  determination  of  the  board 
thereon  is  sufficient  to  sustain  any  action  taken  by  the  said  board.125 

§  106. — Criminal  Abortion 
Generally  speaking,  a  complaint  filed  with  the  state  board  of  exam- 
iners for  the  purpose  of  procuring  the  revocation  of  a  license  for 
unprofessional  conduct  is  sufficient  if  it  informs  the  accused  not  only 
of  the  nature  of  the  wrong  laid  to  his  charge  but  of  the  particular 
instance  of  the  alleged  perpetration.  Hence,  in  a  charge  of  procuring 
or  aiding  or  abetting  in  procuring  a  criminal  abortion  it  is  not  nec- 
essary to  either  allege  or  prove  that  the  woman  had  become  quick. 
It  is  not  the  murder  of  the  living  child  which  constitutes  the  offense, 
but  it  is  the  destruction  of  gestation  when  not  necessary  to  preserve 
the  life  of  a  woman.  In  some  jurisdictions  it  is  held  that  the  moment 
the  womb  is  instinct  with  embryonic  life  and  gestation  has  begun 
crime  may  be  committed.  In  these  jurisdictions  then  it  is  sufficient  if 
the  complaint  of  unprofessional  conduct  charge  the  act  within  the 
meaning  of  the  statute.  It  need  not  in  apt  terms  charge  the  criminal 
destruction  of  a  vitalized  human  fetus  by  the  accused  as  either  prin- 
ciple or  accessory.  And  further  it  seems  that  it  is  unnecessary  to 
allege  or  prove  any  stage  of  utero  gestation  but  simply  that  the  woman 
on  whom  the  abortion  was  committed  was  pregnant  of  a  vitalized 
embryo  or  fetus.126 


122.  Smith  v.  Board  (Iowa),  117  N.  W.  1116. 

123.  Ch.  17,  Iowa  Code,  Sees.  2576,  2578. 

124.  People  v.  Apfelbaum  (111.),  95  N.  E.  995. 

125.  State  v.  State,  32  Minn.  324,  20  N.  W.  238. 
Wolf  v.  State  (Minn.),  123  N.  W.  1074. 

126.  Munk  v.  Frink,  81  Neb.  631,  116  N.  W.  525. 
Mathews  v.  Hedlund,  82  Neb.  825,  119  N.  W.  17. 


206 

Again,  complaint  charged  a  defendant  with  unprofessional  and  dis- 
honorable conduct  committed  on  or  about  a  certain  date  and  at  a  desig- 
nated place  by  wrongfully  and  unlawfully  procuring  a  criminal  abor- 
tion on  a  named  woman  and  by  means  unknown  to  the  complainant, 
the  woman  being  then  pregnant  with  child,  and  the  abortion  not  being 
necessary  to  preserve  her  life.  This  complaint  was  said  to  be  insuf- 
ficient because  it  did  not  specifically  charge  that  the  accused  was  con- 
cerned in  procuring  the  abortion,  but  merely  draws  the  conclusion. 
Such  a  statement  was  deemed  insufficient  to  allow  the  court  to  deduce 
the  conclusion  of  guilt  on  the  part  of  the  accused.  Nor  did  the  com- 
plaint set  forth  any  intent  to  destroy  the  child,  and  this  charge  was 
a  material  element  of  the  offense  under  the  statute  in  question.  And 
the  complaint  was  further  defective  in  failing  to  charge  that  the  death 
of  the  mother  or  of  the  child  was  caused  by  means  of  the  administra- 
tion of  medicines,  drugs  or  other  substance,  or  by  the  employment 
of  the  instruments  or  other  means  mentioned  in  the  statute.127 

It  would  seem  that  any  apparent  conflict  in  these  cases  may  be 
explained  by  the  different  policies  pursued  in  the  several  jurisdictions 
as  regards  criminal  abortion  and  the  method  of  controlling  the  prac- 
tice by  statute.  Considering  the  gravity  of  the  offense  from  a  purely 
concrete  point  of  view  would  be  entirely  sufficient  to  necessitate  an 
effective  regulation  herein.  Hence,  the  necessity  for  care  in  charging 
unprofessional  conduct,  particularly  if  an  alleged  criminal  abortion 
be  made  the  basis  thereof  is  at  once  seen.  These  cases  cited  above 
would  seem  simply  to  go  to  the  point  that  both  the  statutes  and  gen- 
eral policy  of  a  given  state  must  be  given  due  consideration  in  making 
this  complaint  in  order  that  the  law  may  be  given  full  effect.  And 
also  since  criminal  abortion  is  covered  now  in  large  part  by  statute, 
it  is  essential  that  the  act  charged  be  the  statutory  act  of  criminal 
abortion.  For  example  in  Oregon  it  would  seem  that  the  statutory 
offense  of  criminal  abortion  as  found  in  the  Oregon  laws  was  by  the 
code  of  the  same  state,  also  made  unprofessional  conduct.  Quite 
clearly  in  charging  an  accused  with  being  guilty  of  unprofessional 
conduct  in  which  the  gravamen  of  the  charge  was  the  statutory  crim- 
inal abortion,  it  would  seem  essential  to  charge  the  act  with  relation 
to  all  the  statutes,  care  being  taken  not  simply  to  name  a  common  law 
offense  or  an  offense  as  designated  in  the  code  of  some  foreign 
jurisdiction.128 


127.  Board  v.  Eisen  (Ore.),  123  Pac.  52. 

128.  Board  v.  Eisen  (Ore.),  123  Pac.  52. 
Munk  v.  Frink,  81  Neb.  631,  116  N.  W.  525. 
Mathews  v.  Hedlund,  82  Neb.  825,  119  N.  W.  17. 


207 

§  107. — Appeal  to  Court  of  Law 

The  constitutional  provision  as  to  "due  process  of  law"  impels 
most  jurisdictions  to  include  in  their  medical  practice  acts  a  pro- 
vision for  an  appeal  to  a  court  of  law  frequently  on  both  the  law 
and  the  fact  from  the  decision  of  the  medical  boards.  Once  the  courts 
obtain  jurisdiction  there  is  usually  nothing  to  prevent  an  appeal  to, 
or  a  review  by  the  highest  court  of  the  given  state.  In  some  states 
it  would  seem  that  appeals  are  recognized  only  from  judicial  decisions 
and  a  medical  board  not  rendering  such  that  appeals  therefrom  could 
not  be  considered.120 

The  effect  of  this  decision  should  simply  be  to  compel  the  amend- 
ment of  the  law  to  provide  for  an  appeal,  or  to  provide  some  means 
to  take  the  cases  from  the  boards  in  court. 

A  state  having  provided  some  means  to  give  the  courts  jurisdiction 
of  cases  from  the  boards  has  adequately  protected  the  rights  of  any 
person  who  may  deem  himself  aggrieved.130 

In  providing  for  these  so-called  appeals  it  may  not  always  be 
necessary  to  allow  a  trial  de  novo.131 

It  would  seem  sufficient  simply  to  vest  the  courts  with  jurisdiction 
to  refuse  to  sustain  a  revocation  of  a  license  unless  it  be  based  on 
proper  evidence  and  to  prevent  the  boards  from  exceeding  their 
authority.  It  would  seem  that  no  complicated  machinery  is  essential 
and  that  technical  rules  should  be  dispensed  with.  Recourse  must  be 
had  to  the  statutory  law  to  ascertain  the  exact  procedure  provided  in 
any  given  state.132 

Again  it  seems  that  it  is  not  always  essential  that  notice  of  an 
appeal  to  a  proper  court  from  a  decision  by  a  board  should  be  entitled 
by  the  name  of  "the  party  appealing  v.  the  board  of  medical  exam- 
iners of  the  state  .  .  ."  in  order  to  give  the  court  jurisdiction.  In 
some  jurisdictions  it  is  required  only  that  an  intelligible  reference  be 
made  to  the  action  specified  and  that  to  do  so  strictly  formal  pleading 
is  unnecessary,  that  the  court  obtaining  jurisdiction  by  any  reference 
which  would  give  due  notice  to  the  party  aggrieved  of  the  action  to 
be  taken  by  the  court.133 


129.  Ferner  v.  State,  151  Ind.  249. 

130.  Wolfe  v.  State  (Minn.),  123  N.  W.  1074. 
State  v.  Roy,  22  R.  I.  538.  48  Atl.  802. 

131.  State  v.  Roy,  22  R.  I.  538,  40  Atl.  802. 

132.  State  v.  Roy,  22  R.  I.  538,  48  Atl.  802. 
Iowa  v.  Schrader,  87  Iowa  659. 

State  v.  District  Court,  27  Mont.  103,  69  Pac.  710. 
State  v.   Webster,   150  Ind.  602. 
Board  v.  Eisen  (Ore.),  123  Pac.  52. 

133.  State  v.  District  Court,  27  Mont.  103,  69  Pac.  710. 


208 

But  generally  speaking,  it  is  understood  that  a  court  will  not  review- 
matters  in  which  the  board  is  called  to  exercise  discretion  or  perform 
quasi- judicial  functions.  Courts  will,  however,  compel  a  board  to  act 
when  they  fail  in  duty  or  exceed  the  power  conferred.  In  thus  appeal- 
ing to  a  court  of  proper  jurisdiction  from  a  decision  of  the  board  it 
is  required  to  set  forth  in  the  petition  all  the  facts  necessary  to 
entitle  the  petitioner  to  a  license.  If  the  board  has  refused  to  perform 
its  legal  duty  a  court  will  deny  a  motion  on  its  part  to  quash  the 
application  for  an  appeal.  Further,  if  the  answer  of  the  board  denies 
matters  of  record  on  information  and  belief,  such  answer  is  no  denial 
at  all,  especially  when  the  records  are  accessible  to  the  defendant. 
And,  supposing  the  petitioner  were  entitled  to  practice  by  right  of  a 
prior  license  and  applied  for  a  new  license  on  that  basis,  the  board 
would  have  no  jurisdiction  to  determine  as  to  the  reputability  of  the 
petitioner's  college,  and  hence  an  allegation  in  the  petition  that  the 
college  is  not  in  good  standing  would  be  of  no  avail.  If  the  defendant 
board  admits  matters  as  set  forth  in  the  petition,  and  said  petition 
shows  all  matters  necessary  for  a  license  the  board  has  no  authority 
to  refuse  a  license.  The  court  will  not  dismiss  the  petition  but  will 
sustain  the  same  and  take  such  action  as  may  be  necessary  under  the 
circumstances.134 

Again,  in  drawing  a  complaint  against  a  board,  it  is  necessary  to 
plead  and  prove  that  the  petitioner  was  engaged  in  practice  on  the  date 
set  under  the  act.  It  must  also  be  pleaded  that  compliance  with  the 
statute  was  had  as  to  furnishing  the  board  with  the  evidence  showing 
the  existence  of  essential  facts.  And  unless  the  petitioner  establish 
the  existence  of  the  facts  in  a  legal  way,  he  is  not  entitled  to  a  writ 
from  the  court.185 

B.    EVIDENCE 

§  -108. — As  Essential  to  Sustain  a  Conviction  by  a  Board  of 
Unprofessional  Conduct 
In  the  revocation  of  a  license  under  medical  practice  acts,  gen- 
erally speaking,  it  would  seem  largely,  that  the  law  does  not  con- 
template the  use  of  technical  rules  of  evidence  as  applicable  to  a  judi- 
cial trial,  as  a  mere  administrative  or  quasi-judicial  board  could  hardly 
be  expected  to  adhere  thereto.     And  hence,  if  one  of  these  boards 


134.  Vadney  v.  Board  (Ida.),  112  Pac.  1046. 

135.  Sherburne  v.  Board  (Ida.),  88  Pac.  262. 
State  v.  State,  93  Tenn.  619,  27  S.  W.  1019. 
Board  v.  Coffin,  152  Ind.  439. 

State  v.  District  Court,  39  Mont.  134,  101  Pac.  961. 
State  v.  Goodier,  195  Mo.  55. 


209 

should  make  a  plain,  common  sense,  honest  investigation  in  good  faith 
and  as  thorough  as  may  be  with  the  light  of  such  evidence  as  is 
obtainable  on  either  side,  and  in  many  jurisdictions  without  process, 
but  only  with  the  means  at  hand,  this  will  be  sufficient.  It  may  be 
said  that  it  is  simply  required  that  a  medical  board  should  make  such 
an  investigation  as  any  fair-minded  intelligent  man  would  make  in  his 
own  business  concerning  the  alleged  misconduct  of  an  employee.  How- 
ever, it  is  laid  down  as  a  hard  and  fast  rule  that  a  board  cannot  revoke 
a  license  except  for  cause,  and  pursuant  to  the  procedure  of  the  par- 
ticular statute.  But  while  a  board  must  hear  evidence  and  make  its 
findings  thereunder,  yet  it  need  not  recognize  the  technical  rules  of 
evidence  as  would  be  observed  in  a  court  of  law.  Since  boards  as 
established  under  these  statutes  are  composed  in  a  large  part  of  lay- 
men as  regards  the  law,  who  cannot  be  expected  to  have  any  knowledge 
of  judicial  trials.  Moreover,  as  has  been  said,  the  revocation  of  a 
license  is  a  summary  measure  for  the  protection  of  the  health  and 
morals  of  the  state  at  large,  and  hence,  it  would  appear  that  no  legis- 
lature intends  to  circumscribe  a  board  by  technical  rules  of  pleading 
or  the  like.130 

Again,  if  the  record  of  an  examination  should  be  produced  in 
court  neither  judge  or  jury  could  be  required  to  review  the  questions, 
answers  and  credits  given  to  each.  Nor  could  "expert  witnesses" 
properly  be  permitted  to  testify  for  the  reason  that  the  state  has 
designated  experts  to  pass  on  such  matters.  And  thus  it  will  be  seen 
that,  when  a  board  has  once  passed  on  the  qualifications  of  an  appli- 
cant for  a  license,  or  the  like,  generally  speaking,  such  findings  should 
be  sustained  by  the  courts,  and  without  review.137 

But  a  Supreme  Court  has  refused  to  sustain  the  revocation  of  a 
license  on  mere  negative  evidence,  on  the  grounds  that  a  court  is  not 
a  body  of  experts  and  that  such  evidence  would  not  assist  a  court 
in  coming  to  any  conclusion  as  to  the  value  of  any  specific  device  or 
the  like.  And  further,  it  was  said,  that  the  state  should  either  sub- 
mit the  opinion  of  experts,  or  produce  the  testimony  of  witnesses  who 
had  examined  these  devices.  If  this  were  done  there  would  then  be 
affirmative  findings  from  which  a  court  could  deduce  conclusions  and 
thus  either  sustain  the  findings  of  a  board,  or  reverse  them  as  the 
case  might  warrant.138 


136.  State  v.  Goodier,  195  Mo.  55. 

Meffert  v.  Packert,  66  Kan.  710,  72  Pac.  247. 

137.  State  v.  Board  (Wash.),  80  Pac.  544. 

138.  Macomber  v.  State,  28  R.  I.  3,  65  Atl.  263. 


210 

As  evidence  of  fraud  in  obtaining  a  license,  it  has  been  held  that 
the  state  may  be  permitted  to  introduce  into  testimony  the  record 
kept  in  the  office  of  a  county  clerk  showing  the  issuance  of  a  license 
to  the  party  accused.  But  the  clerk  who  made  the  record,  should  be 
required  to  testify  that  the  license  would  not  have  been  issued,  had 
the  party  not  made  an  affidavit,  alleging  that  he  had  fully  complied 
with  the  law  and  that  his  record  was  taken  from  this  affidavit.  The 
clerk  must  also  testify  that  the  affidavit  itself  could  not  be  found, 
although  search  had  been  made  therefor  in  the  proper  place  at  vari- 
ous times.  He  must  further  identify  the  book  containing  the  copy  of 
the  license  as  his  record  kept  pursuant  to  the  law,  requiring  that  the 
county  clerk  should  keep  a  record  of  licenses  and  names  of  the  col- 
leges from  which  applicants  had  graduated,  as  a  public  record.  In 
the  case  in  question,  there  was  further  introduced  into  evidence  an 
affidavit  made  by  the  accused,  on  applying  for  a  license  under  a  sub- 
sequent law,  in  which  he  had  denied  that  he  was  graduated  from  a 
specific  university.  This  evidence  taken  together,  was  held  as  suffi- 
cient to  constitute  a  prima  facie  case  against  the  accused  and  there- 
fore that  the  burden  would  also  rest  with  him  to  rebut  the  testimony 
of  the  clerk,  it  being  presumed  till  this  was  done  that  the  clerk  had 
performed  his  duty.139 

But  it  has  been  held  to  be  error  to  allow  the  accused  to  read  into 
the  record  as  evidence  of  his  right  to  practice  medicine  a  receipt  for 
a  license  fee  which  was  given  him  by  the  secretary  of  the  board.  Such 
a  receipt  is  not  a  license  and  can  furnish  no  excuse  for  a  violation  of 
the  law.  And  even  if  the  accused  should  show  that  he  was  entitled  to 
a  license,  and  that  it  was  arbitrarily  withheld,  this  could  afford  him 
no  sufficient  justification  to  practice  medicine.140 

Again,  the  testimony  of  a  physician  was  introduced  into  evidence 
over  objection  that  before  he  would  treat  a  woman  on  whom  an  illegal 
operation  had  been  performed,  he  had  demanded  that  she  sign  a 
written  statement  that  defendant  had  operated  on  her  at  his  office 
to  bring  her  around,  and  that  another  physician  had  later  curetted 
the  womb.  The  admission  of  this  testimony  and  the  writing  was  error. 
If  the  death  of  the  woman  had  been  an  issuable  fact  under  the  allega- 
tion, it  would  have  been  competent  to  inquire  into  her  declaration  as 


139.  Curryer  v.  Oliver,  27  Ind.  App.  424. 
State  v.  Lutz,  136  Mo.  633. 

Gully  v.  Territory  (Okla.),  91  Pac.  1037. 

State  v.  Adcock  (Mo.),  124  S.  W.  1100. 

State  v.  District  Court,  26  Mont.  121,  66  Pac.  754. 

140.  Melville  v.  State  (Ind.),  89  N.  E.  490. 
Spurgeon  v.  Rhodes,  167  Ind.  1,  78  N.  E.  228. 


211 

to  the  cause  of  her  death,  supposing  it  to  have  been  made  under  a 
sense  of  impending  death.  The  evidence  as  given  was  the  only  testi- 
mony on  record  to  show  that  the  defendant  did  intend  to  perform  a 
criminal  abortion  on  the  woman,  as  his  own  testimony  flatly  contra- 
dicted the  charge,  and  such  evidence  would  seem  insufficient  to  sus- 
tain a  conviction.141 

It  will  thus  be  seen  that  the  courts  allow  considerable  liberty  in 
the  matter  of  evidence  in  hearings  before  medical  boards.  And  that, 
for  the  most  part,  if  due  discretion  and  common  sense  be  exercised, 
the  findings  based  on  such  evidence  will  be  deemed  sufficient  to  sus- 
tain a  charge  of  unprofessional  conduct,  under  a  given  statute. 


141.  Board  v.  Eisen  (Ore.),  123  Pac.  52. 

Chenoweth  v.  State  (Colo.),  135  Pac.  771. 
Graeb  v.  State  (Colo.),  135  Pac.  776. 


CHAPTER  VI 

THE  SANCTION  OF  THE  LAW;  EXTRAORDINARY 

REMEDIES 


A.     THE  SANCTION  OF  THE  LAW 

§  109.  In  General. 

§  110.  Fines  and  Imprisonment. 

§  111.  Saving  Clause. 

§  112.  Continuing  or  Single  Offenses. 

§  113.  Non-Compliance  with  the  Law  Renders  Contract  for  Services  Void. 

§  Hh.  The  Refusal  or  Revocation  of  a  License — Sanction. 

B.     EXTRAORDINARY  REMEDIES 

§  115.  In  General. 

§  116.  Mandamus. 

§  111.  Function  of  the  Writ  of  Mandamus. 

§  118.  Unprofessional  Conduct  and  the  Writ  of  Mandamus. 

§  119.  Matriculation. 

§  120.  Diploma  from  a  Reputable  College. 

§  121.  Requirement  of  a  Four  Years'  Course. 

§  122.  Requirement  of  a  Diploma  and  an  Examination. 

§  123.  Registration. 

§  124.  Licensure  under  the  Exception — Verifications,  Etc. 

§  125.  The  Writ  of  Prohibition. 

§  126.  The  Writ  of  Injunction. 

§  127.  The  Writ  of  Certiorari. 


A. — The  Sanction  of  the  Law 

§  109. — In  General 
As  to  whether  or  no  medical  practice  acts  may  more  properly  be 
construed  as  penal  statutes  or  as  remedial  is  really  a  question  of  no 
little  importance  and  one  to  which  a  variety  of  answers  may  be  given. 
It  may  be  argued  that  if  a  law  has  a  sanction  it  must  of  necessity  be 
penal.  And  yet  it  may  be  said  that  the  penalties  attaching  to  these 
laws  are  not  such  in  the  strict  sense  of  the  word,  and  as  a  consequence 
do  not  render  the  measures  penal.  Rather  it  may  be  said  that  the 
penalties  of  fines  and  imprisonment  are  not  so  much  to  punish  vio- 
lators of  the  law  as  it  is  to  protect  the  general  public.     This  point 


213 

would  seem  quite  apparent  as  regards  the  revocation  of  a  license.  Here 
it  is  submitted  that  the  physician  does  not  have  his  license  revoked 
because  of  his  unprofessional  act;  but  from  the  commission  of  the 
act  he  has  proved  himself  unworthy  of  the  public  confidence,  and  con- 
sequently to  prevent  any  imposition  on  the  public,  his  right  to  treat 
for  disease  is  taken  away.  Then  if  being  unlicensed  he  persists  in 
his  attempting  to  pursue  his  profession  he  may  be  fined.  Yet  here 
again  it  is  not  in  the  nature  of  punishment  but  rather  the  sanction 
is  the  beneficent  arm  of  the  state  interposed  between  the  fraud,  char- 
latan and  the  like  and  the  people  as  a  protection  to  the  latter.  Nor 
should  the  method  of  enforcing  these  laws  be  any  argument  materially 
supporting  the  claim  as  to  the  statutes  being  penal.  That  is,  the  fact 
that  a  violator  is  criminally  presented  by  the  state  means  nothing. 
It  is  simply  a  convenient  way  of  managing  the  affair  for  the  citizen. 
In  point  of  fact  it  may  be  provided  that  the  penalty  be  recovered  in 
an  action  of  debt  brought  either  by  a  private  citizen  or  by  the  state.1 

Of  course  it  is  well  recognized  that  no  mandatory  law  can  well  exist 
without  sanction,  and  to  this  extent  the  penalties  attaching  are  for  a 
punishment  and  not  simply  as  gentle  reminders  to  desist  from  practice 
till  a  license  be  secured.2 

But  even  so  the  unlicensed  practitioner  is  punished  not  because 
there  is  anything  inherent  by  wrong  in  practicing  without  a  license, 
as  it  is  because  it  is  essential  for  the  public  welfare  to  maintain  a 
supervision  over  this  calling  to  restrain  those  who  might  enter  the 
profession  in  the  event  of  its  being  free  from  all  limitations.  The 
state  cannot  make  the  law  apply  only  to  those  who  may  work  harm, 
so  it  compels  all  to  qualify  and  secure  a  license,  penalizing  those  who 
do  not  comply  with  its  mandates.  And  again,  it  may  be  said  that 
murder  is  a  crime  in  itself,  while  practicing  without  a  license  is  not. 
The  law  does  seek  to  prevent  murder  per  se,  but  a  medical  practice 
act  is  not  seeking  to  prevent  solely  the  practice  of  medicine  by  the 
unlicensed.  It  is  attempting  something  more.  It  is  impelling  the  pos- 
session of  the  highest  average  of  professional  skill  and  integrity,  and 
is  seeking  to  eliminate  from  the  practice  those  who  will  not  or  cannot 
maintain  this  standard.  To  this  extent  then  these  laws  are  remedial, 
and  for  this  reason  must  be  liberally  construed.  Hence  it  is  that  any 
penalty  attaching  whether  from  practicing  without  a  license  ab  initio 
or  after  a  revocation  of  a  license  has  been  had,  and  further,  the  remedial 


1.  Staats  v.  Thompson,  15  Wend.  395   (N.  Y.). 
People  v.  Dunn  (111.),  99  N.  E.  577. 

State  v.  Cotner  (Kan.),  127  Pac.  1. 

2.  State  v.  Cotner  (Kan.),  127  Pac.  1. 


214 

measure  of  the  revocation  per  se  are  for  the  purpose  of  preventing 
frauds  and  to  conserve  the  public  health.  Indeed  such  a  measure  may 
at  once  be  termed  a  statute  of  frauds  and  a  health  ordinance.  They 
are  police  regulations  quasipenal  in  form.3 

§  110. — Fines  and  Imprisonment 
Many  laws  are  directory  as  to  who  shall  enforce  the  provisions 
thereof,  specifying  some  public  official,  and  thus  not  leaving  the  invok- 
ing of  a  penalty  to  private  initiative  or  the  promptings  of  mercenary 
motives.  Thus  the  enforcement  of  a  medical  practice  act  may  be  laid 
on  the  secretary  of  the  board  of  examiners  and  all  other  law  officers 
may  be  enjoined  to  assist  him.4 

Or  again  it  may  be  left  to  private  initiative  to  recover  the  penalty.5 
All  these  measures  make  it  mandatory  that  they  be  complied  with 
and  provide  a  penalty  in  the  nature  of  a  fine  or  imprisonment  or  both 
in  some  fixed  amount  for  any  violation.6 

§  111. — Saving  Clause 
On  the  repeal  of  a  medical  practice  act  it  should  be  borne  in  mind 
that  a  saving  clause  must  be  attached  to  the  law  which  is  to  take  its 
place  else  no  prosecution  of  a  violation  under  the  prior  law  may  be 
had  by  the  common  law  rule.  And  also  the  repeal  of  a  statute  pending 
a  prosecution  thereunder  without  attaching  any  saving  clause  to  the 
repealing  law  effectually  prevents  any  further  prosecution  of  the 
pending  case.  And  again  the  same  rule  applies  even  after  a  judgment 
rendered  but  still  pending  on  an  appeal,  just  as  well  as  before  a  final 
determination  in  a  trial  court.7 

§  112. — Continuing  or  Single  Offenses 
In  determining  whether  or  no  violations   of  a  medical  practice 
act  are  to  be  considered  as  a  whole  and  grouped  as  one  offense  or 
whether  each  attempt  to  practice  legally  should  be  held  as  a  separate 


3.  State  v.  Oredson,  96  Minn.  509. 
1  Kent's  Com.  461. 

State  v.  Beck,  21  R.  I.  288. 

4.  State  v.   Cotner    (Kan.),   127  Pac.   1;  aff'd  Green  v.  Hodges    (Kan.),   138 
Pac.  605. 

5.  Staats  v.  Thompson,  15  Wend.  395   (N.  Y.). 

6.  State  v.  Hathaway,  115  Mo.  36. 
State  v.  Chapman,  69  N.  J.  L.  464. 
Dodge  v.  State,  17  Neb.  140. 
State  v.  Davis,  194  Mo.  485. 
People  v.  Langdon,  219  111.  189. 

7.  State  v.  Hanover   (Wash.),  105  Pac.  624. 
People  v.  Jones,  9  111.  App.  445. 


215 

offense  must  depend  in  no  little  degree  on  the  precise  wording  of  the 
statute.  Not  that  any  law  says  that  all  acts  violative  thereof  are  to  be 
deemed  "single  offenses"  in  just  so  many  words,  but  many  laws  do 
provide  that  "prescribing  a  drug  for  a  fee"  is  practicing  medicine. 
And  such  language  may  very  well  be  construed  as  meaning  that  each 
act  is  a  separate  offense  and  must  be  punished  accordingly.8 

Authority  is  to  be  found  for  each  contention  and  with  good  grounds 
for  either  position  taking  all  the  circumstances  into  consideration  of 
the  statute  at  bar.  Thus  when  a  statute  prescribes  that  "treating  any 
person  for  a  fee"  is  practicing  medicine,  it  would  seem  that  the  court 
is  compelled  to  hold  each  act  as  a  separate  offense.  For  under  the 
language  it  is  not  necessary  that  the  "treating"  be  done  frequently, 
customarily  or  habitually.  One  isolated  instance  is  sufficient  and  the 
penalty  should  be  affixed  for  each  offense.9 

And  the  same  would  be  true  of  similar  language  denouncing  sur- 
gical operations  or  other  specific  acts.  And  moreover,  it  would  seem 
that  any  fair  consideration  of  the  mischief  which  the  legislature  is 
seeking  to  remedy  would  lead  to  this  conclusion.10 

Of  course,  should  a  statute  read  that  the  "prescribing  or  treating 
be  done  habitually"  then  a  court  cannot  take  an  isolated  act,  but  must 
group  them  and  consider  all  as  "continuing  offenses."  But  it  is 
submitted  that  such  language  would  seem  objectionable  in  making 
the  law  more  difficult  to  administer  effectively.  That  is,  being  compelled 
to  prove  "continued"  violation  when  a  single  act  might  constitute  the 
infringement.  Here  it  would  seem  that  the  consummation  of  the  true 
object  of  the  statute,  which  is  the  protection  of  the  public,  is  prevented 
by  such  a  construction.  Yet  again  it  is  said  that  in  construing  the 
language  of  a  statute,  in  which  the  word  "habitually,"  or  the  like, 
is  not  used,  it  might  seem  that  to  consider  each  act  as  a  single  offense 
would  be  to  render  the  statute  invalid  in  as  much  as  that  if  the 
defendant  were  fined  for  each  act,  and  he  were  unable  to  pay  the 
fines  he  might  be  imprisoned  for  life.  Hence  it  is  argued  that  the 
cumulative  construction  is  not  to  be  applied  unless  the  court  is  con- 
strained thereto  by  the  very  letter  of  the  statute,  and  that  a  violator 
is  to  be  subject  to  but  one  conviction  of  the  whole  period  of  time  next 
preceding  the  institution  of  the  prosecution.11 


8.  State  v.  Cotner  (Kan.),  127  Pac.  1. 
Antle  v.  State,  6  Tex.  App.  202. 
Wilson  v.  Comm.,  26  Ky.  685. 

9.  State  v.   Cotner    (Kan.),   127   Pac.  1. 
Antle  v.  State,  6  Tex.  App.  202. 

10.  State  v.  Cotner   (Kan.),  127  Pac.  1. 

11.  Wilson  v.  Comm.,  26  Ky.  685. 


216 

On  the  other  hand,  however,  it  must  be  remembered  that  these 
statutes  are  to  protect  the  lives,  health  and  financial  resources  of  men, 
women  and  children  from  ignorance  and  imposture  and  therefore  the 
measures  being  remedial  they  must  receive  a  liberal  interpretation  and 
all  mere  doubts  as  to  their  constitutionality  should  be  resolved  affirm- 
atively.12 

And,  too,  each  act  of  unlicensed  practice  may  be  fraught  with 
danger,  every  repetition  thereof  is  a  new  peril,  and  instead  of  applying 
to  a  continuous  course  of  conduct  the  statute  if  possible  should  be 
construed  as  specifying  and  condemning  each  impulse  to  the  very  end 
that  it  may  not  unite  with  others  in  swelling  a  common  .stream  of 
action.13 

The  opening  of  an  office  with  a  physician's  sign  on  the  door  would 
be  establishing  a  place,  the  criminal  consequence  of  which  would 
merely  persist.  And  any  attempt  to  split  up  this  persistence  would  be 
purely  arbitrary.  But  it  has  been  said  that  there  is  nothing  arbitrary 
in  taking  separate  account  of  the  separate  cases  of  the  different  indi- 
viduals treated  by  a  given  defendant  and  penalizing  each  act  as  an 
individual  offense.  And  it  has  been  argued  that  such  a  construction 
is  but  for  the  best  interest  of  the  people  and  that  it  might  very  well 
fairly  obtain.14 

Taking,  therefore,  these  several  constructions  into  consideration 
it  might  be  well  to  so  draft  the  act  that  both  single  and  continuing 
violations  may  be  dealt  with.  In  this  way,  supposing  an  unlicensed 
physician  treat  ten  patients  he  need  not  be  prosecuted  as  for  ten 
violations,  but  as  for  one,  and  proof  of  any  one  will  sustain  a  convic- 
tion. Again,  a  physician  may  be  prosecuted  for  one  violation  on  proper 
evidence. 

§  113. — Non-Compliance  with  the  Law  Renders  Contract  for 

Services  Void 
Just  as  it  may  be  provided  by  legislative  enactment  that  all  who 
desire  to  practice  must  give  evidence  of  qualification,  so  a  legislature 
may  also  provide  that  any  services  rendered  without  having  qualified 
under  the  law  must  be  gratuitous,  and  that  any  contract  for  a  fee 
therefore  will  imprimis  be  nudum  pactum.  And  hence  a  physician 
may  not  have  the  benefit  of  the  courts  in  attempting  to  recover  on  any 
such  contract.15 


12.  State  v.  Cotner  (Kan.),  127  Pac.  1. 

13.  State  v.  Cotner  (Kan.),  127  Pac.  1. 
Antle  v.  State,  6  Tex.  App.  202. 

14.  State  v.  Cotner   (Kan.),  127  Pac.  1. 
Antle  v.  State,  6  Tex.  App.  202. 

15.  Hewitt  v.  Charier,  16  Pick.  353  (Mass.). 


217 

Clearly  under  such  laws  it  is  the  design  of  the  legislature  not  only 
to  take  away  all  right  of  action  of  such  services  but  to  make  them 
when  rendered  with  the  evident  intent  to  violate  the  law  absolutely 
gratuitous.  Hence  it  could  not  be  competent  for  a  legislature  to  create 
an  obligation  out  of  a  by-gone  transaction  which  at  the  time  of  its 
occurrence  all  parties  understood  to  be  and  was  strictly  gratuitous.1" 

The  principle  on  which  these  statutes  are  based  is  one  well  recog- 
nized at  common  law  and  is  simply  that  a  contract  founded  upon  an 
illegal  consideration  or  one  made  against  public  policy  is  void  and  no 
action  can  be  maintained  thereon ;  and  when  the  doing  of  an  act  is 
prohibited  by  legislative  authority  under  a  penalty  it  cannot  constitute 
a  consideration  to  support  a  contract.  Illegality  whether  arising  from 
common  law  or  from  statute  affects  the  act  or  contract  with  a  like 
infirmity.  Hence  it  is  of  no  avail  that  a  defendant  is  a  skilled  physi- 
cian and  a  graduate  of  a  university.  If  he  has  violated  the  law  any 
contract  he  may  have  entered  into  for  services  is  absolutely  null  and 
void  and  he  is  without  recourse  under  the  law.17 

Some  statutes  require  physicians  to  register  their  license  in  the 
county  of  their  residence,  and  this  would  seem  to  require  a  new  regis- 
tration for  each  change  of  residence  a  physician  may  make.  Under 
these  laws  it  is  frequently  provided  in  addition  that  no  recovery  may 
be  had  for  services  rendered  should  a  physician  have  failed  to  so 
register.  And  usually  a  subsequent  compliance  with  the  law  will 
not  permit  a  recovery  for  any  illegal  services  rendered.18 

But  under  some  statutes  it  would  seem  that  a  recordation  is  not 
mandatory,  that  is  a  failure  to  do  so  will  not  preclude  a  recovery  for 
services  rendered,  provided,  of  course,  that  the  physician  actually  had 
a  certificate.  But  in  these  jurisdictions  it  usually  appears  in  the  statute 
that  the  issuance  of  the  certificate  is  conclusive  as  to  the  rights  of  the 
lawful  holder  to  practice  in  the  state.  Here  it  would  seem  that  any 
recordation  required  is  but  a  mere  additional  protection.19 

And  clearly  it  is  not  necessary  to  have  a  recordation  in  each  county 
in  which  a  physician  may  practice.  That  is,  a  party  defendant  in  a 
suit  on  a  physician's  contract  would  have  to  show  that  the  physician 
was  a  resident  of  the  particular  county  before  the  contract  could  be 
abrogated.20 


16.  Warren  v.  Saxby,  12  Vt.  146.  '<  v,. 

17.  Bohn  v.  Lowry,  77  Miss.  424. 

Wooley  v.  Bell,  33  Tex.  Civ.  App.  399,  76  N.  W.  797. 

18.  Mayfield  v.  Nale,  26  Ind.  App.  240,  59  N.  E.  415. 
Murray  v.  Williams,  121  Ga.  63. 

Haworth  v.  Montgomery,  91  Tenn.  16,  18  S.  W.  399. 

19.  Riley  v.  Collins   (Colo.),  64  Pac.  1052. 

20.  Riley  v.  Collins   (Colo.),  64  Pac.  1052. 


218 

In  New  York  it  was  provided  by  statute  that  an  imperfect  regis- 
tration might  be  subsequently  corrected  as  of  the  date  of  the  issuance 
of  the  physician's  license.  That  is,  the  correction  was  said  to  have  a 
retroactive  effect  and  thereby  the  physician  was  permitttd  to  recover 
for  services  rendered  subsequent  to  such  imperfect  registration.  But 
the  benefit  of  this  law  could  only  be  availed  of  by  physicians  whose 
imperfect  registration  was  due  to  some  error,  misunderstanding  or 
unintentional  omission  on  their  part.  All  of  which  must  be  satisfac- 
torily shown  to  the  proper  authorities  as  well  as  that  the  physician 
had  all  the  requirements  prescribed  by  law  at  the  time  of  his  imperfect 
registration.  This  latter  may  be  proved  by  obtaining  a  certificate  of 
facts  from  the  regents  and  then  filing  it  together  with  any  other  evi- 
dence the  said  physician  may  wish  to  submit.21 

§  114. — The  Refusal  or  Revocation  of  a  License — Sanction 
It  would  seem  perhaps  somewhat  more  of  an  anomaly  to  denomi- 
nate the  revocation  of  a  license  a  remedial  measure  than  it  would  to 
so  class  the  refusal  of  a  license.  And  yet  it  may  be  urged  that  from 
one  point  of  view  there  would  seem  to  be  no  possible  distinction  between 
refusing  to  grant  a  license  and  revoking  one  already  granted.  Both, 
it  may  be  said,  are  an  exercise  of  the  police  power  vested  in  govern- 
ment and  that  the  primal  object  is  identical,  viz:  to  exclude  incom- 
petent and  unworthy  persons  from  the  medical  profession.22 

And  again  any  distinction  taken  between  the  right  to  establish 
a  practice  and  the  right  to  continue  in  that  practice  already  estab- 


21.  Ottaway  v.  Lowden,  172  N.  Y.  129. 

And  for  cases  on  kindred  or  related  topics  see  Musser's  Ex'c'r.  v.  Chase, 
29  Ohio  577,  holding  that  a  failure  to  register  is  no  defense  to  a  suit 
for  malpractice ;  Leggat  v.  Carrick,  35  Mont.  91,  holding  that  when  a 
failure  to  register  or  otherwise  qualify  is  made  a  defense  in  a  civil 
action  the  burden  of  proof  is  with  the  defendant  to  rebut  the  pre- 
sumption that  the  physician  is  duly  qualified,  and  to  the  same  effect 
see  also 

Williams  v.  People,  20  111.  App.  92. 

McPherson  v.  Cheadell  (N.  Y.),  24  Wend.  15. 

Thompson  v.  Sayre  (N.  Y.),  1  Denio  175. 

Pearce  v.  Whale,  5  Barn  &  Cres  758. 

J.  Davies  Co.  v.  Staples,  108  111.  App.  539. 

Lacy  v.  Kossuth  Co.,  106  Iowa  16. 

Dickerson  v.  Gordon  5  (La.),  Rob.  489. 

Lugford  v.  Martin,  79  Minn.  243. 

Cather  v.  Damerell  (Neb),  79  N.  W.  35. 

Rider  v.  Ashland  Co.,  87  Wis.  160. 

City  of  Chicago  v.  Wood,  24  111.  App.  40. 

Good  v.  Lasher,  99  111.  App.  653. 

22.  State  v.  State,  34  Minn.  387. 


219 

lished  seems  to  be  without  clear  support  in  view  of  the  fact  that  the 
practice  of  medicine  is  so  closely  associated  with  the  health  and  best 
interests  of  the  people  generally.  Hence  it  would  seem  contrary  to  all 
right  principles  of  justice  and  reason  to  hold  that  a  distinction  may 
be  taken  because  of  a  so-called  vested  right  to  continue  in  an  estab- 
lished practice.23 

And  yet  such  a  distinction  is  attempted  by  not  a  few  authorities.2* 
And  notwithstanding  the  fact  that  it  is  just  as  conducive  to  evil  to 
permit  a  man  guilty  of  unprofessional  conduct  to  remain  in  the  profes- 
sion as  it  is  to  allow  such  a  man  to  enter  therein.  Clearly  it  would 
seem  a  man  has  no  vested  right  in  that  which  he  has  shown  himself 
incapable  of  using  with  due  regard  to  the  rights  of  others.  Sic  utere 
tuo  ut  alienum  non  laedas.  Nor  is  it  the  law  that  a  man  has  acquired 
such  a  right  merely  because  he  has  become  established  in  his  profes- 
sion and  has  built  up  a  valuable  business.25 

It  would  therefore  seem  that  the  conclusion  may  safely  be  drawn 
that  there  is  no  real  distinction  between  the  refusal  of  a  license  and 
the  revocation,  at  least  from  the  point  of  view  of  the  object  which  each 
act  is  supposed  to  accomplish,  and  that  after  all  that  is  of  the  primal 
importance.  Again,  when  it  is  said  that  the  refusal  of  a  license  because 
of  a  lack  of  qualification  is  for  the  purpose  of  protecting  the  public 
the  assertion  would  seem  necessary  of  less  proof  than  when  a  like 
statement  is  made  with  regard  to  the  revocation  of  a  license.  The  fact 
that  there  must  be  "due  notice"  and  "a  hearing"  together  with  various 
other  proceedings,  to  say  nothing  of  the  fact  that  the  licensed  physician 
has  an  established  business,  would  seem  to  go  far  in  controverting  any 
idea  of  a  revocation  being  simply  remedial  and  in  no  way  a  penalty. 
But  nevertheless  the  fact  remains  that  the  courts  do  hold  both  to  be 
simply  remedial  measures  and  not  for  the  purpose  of  punishment.  The 
fact  that  the  physician  by  an  act  termed  "unprofessional  and  dishonor- 
able conduct"  does  invite  a  forfeiture  of  a  valuable  right  would  seem  to 
constitute  punishment  for  his  allegal  act.  And  in  point  of  fact  the 
revocation  of  a  license  is  a  penalty  and  a  heavy  one.  To  argue  to  the 
contrary  is  more  or  less  academic,  but  yet  in  view  of  the  rules  of 
construction  which  might  apply  to  do  so  is  not  without  practical  value. 
Hence  the  courts  have  held  that  the  revocation  of  a  license  whether 


23.  State  v.  Gravett,  65  Ohio  St.  289. 

24.  Freund,  Police  Power,  Para.  546. 

25.  Hawker  v.  New  York,  170  U.  S.  189. 
Reetz  v.  Michigan,  188  U.  S.  505. 

Collins  v.  Texas,  32  Sup.  Ct.  Rep.  (U.  S.)  286. 


220 

arbitrarily  or  no  is  simply  a  remedial  measure  for  the  protection  of  the 
public  and  in  no  sense  a  penalty.26 

Having  taken  the  view  that  the  revocation  of  a  license  is  remedial 
and  not  in  the  nature  of  a  penalty  it  would  seem  that  courts  would 
find  it  more  within  the  bounds  of  reason  to  give  a  liberal  construction 
to  this  provision  in  a  medical  practice  act. 

The  court  in  Chenoweth  v.  State,  cited  supra,  seemingly  went  on 
the  ground,  at  least  in  part,  that  the  cure  of  disease  of  the  sexual 
organs  is  of  itself  highly  beneficial  and  hence  that  advertising  the 
ability  to  cure  such  diseases  could  work  no  harm.  Consequently,  to 
prevent  a  man  from  working  at  his  profession  for  merely  advertising 
a  benefit  to  humanity  would  be  a  most  unreasonable  penalty,  and  such 
as  would  invalidate  any  measure  prescribing  such  action.  Now  had 
the  court  taken  the  position  that  the  revocation  of  a  license  is  not  a 
penalty  irrespective  of  the  fact  that  a  forfeiture  is  being  effected,  but 
that  a  revocation  is  had  for  remedial  purposes  only,  it  would  seem 
impossible  to  draw  any  other  conclusion  than  that  a  law  forbidding 
a  physician  to  advertise  the  cure  of  diseases  of  the  sexual  organs  was 
to  protect  the  public.  At  any  rate  it  needs  no  great  stretch  of  the 
imagination  to  recognize  the  evils  attendant  upon  professional  adver- 
tising of  this  nature,  and  by  construing  these  laws  regulating  physi- 
cians as  remedial,  a  court  may  with  entire  propriety  take  this  position 
and  uphold  the  law  as  constitutional.27 


26.  Meffert  v.  Board,  66  Kan.  710. 
People  v.  Apfelbaum,  95  N.  E.  995. 
Fox  v.  Territory,  2  Wash.  T.  297. 
Hawker  v.  New  York,  170  U.  S.  109. 
Reetz  v.  Michigan,  188  U.  S.  505. 
State  v.  Schaffer,  113  Wis.  595. 
State  v.  State,  34  Minn.  387. 

Smith  v.  Board  (Iowa),  117  N.  W.  1116. 
But  see 

Freund,  Police  Power,  Para.  545. 
Chenoweth  v.  State  (Colo.),  135  Pac.  771. 
Graeb  v.  State  (Colo.),  135  Pac.  776. 

27.  Meffert  v.  Board,  66  Kan.  710. 

People  v.  Apfelbaum  (111.),  95  N.  E.  995. 

Aiton  v.  Board  (Ariz.),  114  Pac.  962. 

Rose  v.  Baxter,  81  Ohio  St.  522,  7  Nisi  Prins.  (N.  S.)  132. 

Smith  v.  Board  (Iowa),  117  N.  W.  1116. 

Board  v.  Eisen   (Ore.),  123  Pac.  52. 

State  v.  Webster,  150  Ind.  607. 

Fort  v.  City,  87  Ark.  400. 

Munk  v.  Frink,  81   Neb.  631. 

Mathews  v.  Hedlund,  82  Neb.  825. 

State  v.  Roy,  22  R.  I.  538. 

People  v.  McCoy,  125  111.  289. 

Morse  v.  Board  (Tex.),  122  S.  W.  446. 

Spurgeon  v.  Rhodes,  167  Ind.  1. 

State  v.  McCrary,  77  Ark.  611,  92  S.  W.  775. 


221 

It  would  therefore  seem  entirely  competent  to  conclude  that  medical 
practice  acts  should  not  be  construed  as  penal  but  as  purely  and  simply 
remedial  measure*.  This  position  is,  as  the  authorities  would  seem  to 
show,  supported  by  justice  and  equity  and  is  in  every  way  commen- 
surate with  the  best  interests  of  humanity.  And  that  these  ends  may 
obtain,  a  liberal  construction  must  be  given  to  medical  practice  acts 
even  should  there  be  a  tendency  to  militate  to  a  marked  degree  thereby 
against  those  composing  the  medical  profession  itself. 

B. — Extraordinary  Remedies 
§  115. — In  General 

Upon  a  performance  of  all  the  conditions  precedent  it  at  once 
devolves  upon  the  board  of  examiners  to  issue  to  the  applicant  a 
license  to  pursue  his  profession.28 

And  the  applicant  has  his  remedy  at  law  to  enforce  his  right  to  a 
license  providing  he  can  prove  to  the  reasonable  satisfaction  of  the 
board  that  he  is  fully  qualified  in  all  respects.29 

But  a  statute  forbidding  anyone  from  practicing  medicine  till 
declared  qualified  by  the  proper  authorities,  is  as  much  a  prohibition 
on  the  courts  as  on  the  people  themselves.30 

As  the  provisions  of  the  various  acts  would  seem  to  show  that 
beyond  any  question  it  is  the  clear  intention  of  the  legislature  that  all 
desiring  to  practice  must  be  fully  qualified.     Consequently,  the  courts 


27. — Continued. 

Kennedy  v.  Board,  145  Mich.  241. 

State  v.  Board,  32  Minn.  324. 

Curryer  v.  Oliver,  27  Ind.  App.  424. 

Gulley  v.  Territory,  91  Pac.  1037  (Okla.). 

State  v.  District  Court,  26  Mont.  121. 

State  v.  Stewart,  46  Wash.  79. 

France  v.  State,  57  Ohio  1. 

State  v.  State,  34  Minn.  387. 

Fox  v.  Territory,  2  Wash.  T.  297. 

Hawker  v.  United  States,  170  U.  S.  189. 

Reetz  v.  Michigan,  188  U.  S.  505. 

But  see 

Freund,  Police  Power,  Para.  545,  et  sequi. 

Macomber  v.  Board,  28  R.  I.  3. 

Hewitt  v.  Board,  148  Cal.  590. 

Matthews  v.  Murphy,  23  Ky.  750. 

Czarra  v.  Board,  25  App.  D.  C.  443. 

Chenoweth  v.  State  (Colo.),  135  Pac.  771. 

Graeb  v.  State  (Colo.),  135  Pac.  776. 

28.  Gage  v.  Censors,  63  N.  H.  92. 

29.  Gage  v.  Censors,  63  N.  H.  92. 
Board  v.  People,  102  111.  App.  614. 

United  States  v.  Curtis  (D.  C),  38  W.  L.  R.  396. 

30.  State  v.  District  Court,  26  Mont.   121. 


222 

hesitate  to  act  in  any  other  case  than  a  clear  and  palpable  invasion  of 
rights  or  total  disregard  for  the  law.31 

And  in  the  same  way  the  licensed  practitioner*  may  protect  his 
right  to  pursue  his  profession  by  a  recourse  to  the  courts,  but  only 
in  cases  of  gross  abuse  of  powers  conferred  upon  a  given  board  of 
examiners.32 

§  116. — Mandamus 

An  applicant  for  a  license  has  no  grievance  which  can  be  redressed 
in  court  if  it  be  impossible  to  show  that  he  has  complied  with  the 
several  conditions  precedent.  But  if  a  license  be  wrongfully  withheld 
the  applicant  should  apply  to  a  proper  jurisdiction  for  a  writ  of 
mandamus  or  in  some  other  such  appropriate  action  as  may  be  afforded 
by  law.33 

§  117. — Function  of  the  Writ  of  Mandamus 

In  general  the  office  of  the  writ  of  mandamus  is  to  compel  a  board 
of  examiners  or  some  such  subordinate  body  to  perform  certain 
ministerial  or  quasijudicial  acts  as  prescribed  by  law.  It  is  a  com- 
mand from  a  superior  tribunal  to  an  inferior  one  to  compel  action  on 
the  part  of  the  subordinate  in  the  case  of  a  failure  of  duty.  But  never 
to  compel  the  lesser  tribunal  to  decide  a  particular  case  in  a  particular 
manner.  A  subordinate  body  can  be  directed  by  a  writ  to  act  in  any 
matter  in  which  it  has  a  right  to  express  a  judgment,  but  not  how 
to  act.  The  character  of  the  duty  and  not  that  of  the  body  or  officers, 
determines  how  far  the  performance  of  a  duty  may  be  enforced  by 
mandamus.34 

Courts  cannot  review  the  discretion  which  has  by  law  been  vested 
exclusively  in  an  inferior  tribunal,  and  therefore  mandamus  will  not 


31.  Harding  v.  People,  10  Colo.  387. 
Goswell  v.  State,  52  Ark.  228. 
Metcalf  v.  Board,  151   Cal.  499. 
Paquin  v.  State,  19  R.  I.  365. 
State  v.  Wilson,  62  Kan.  621. 

United  States  v.  Wilson  (D.  C),  38  W.  L.  R.  396. 

32.  State  v.  Webster,  150  Ind.  607. 
State  v.  Goodier,  195  Mo.  551. 
Wolf  v.  Saylor,  42  Ore.  546. 

33.  Paquin  v.  State,  19  R.  I.  365. 
Metcalf  v.  Board,  123  Mich.  661. 
Melville  v.  State  (Ind.),  89  N.  E.  490. 
Stone  v.  State,  52  Ark.  228. 

Board  v.  Fowler,  50  La.  Ann.  1358. 
State  v.  Cooper  (Ida.),  81  Pac.  374. 
Harding  v.  People,  10  Colo.  387. 

See  Green  v.  Hodges  (Kan.),  138  Pac.  605,  in  which  petition  for  mandamus 
denied  to  compel  governor  to  appoint  chiropractic  board. 

34.  People  v.  Board,  110  111.  180. 

United  States  v.  Curtis  (D.  C),  38  W.  L.  R.  396. 


223 

lie  to  compel  the  performance  of  acts  or  duties  which  necessarily  call 
for  the  exercise  of  discretion  on  the  part  of  the  officer  or  board  at 
whose  hands  their  performance  is  required,  because  the  state  has 
specified  the  officers  on  whose  judgment  reliance  is  to  be  placed.35 

Courts  will  compel  by  mandamus  the  honest  performance  of  official 
duty  and  will  grant  relief  where  power  is  exercised  with  manifest 
injustice  or  is  grossly  abused,  or  duty  is  avoided  under  a  pretense  of 
exercising  discretion.30 

In  such  cases  courts  may  order  the  due  and  proper  exercise  of  any 
legal  duty.  Clearly  in  such  cases  the  abuse  of  a  discretion  may  be 
controlled  by  mandamus,  for  an  abuse  of  a  discretion  may  amount  to 
a  virtual  refusal  to  perform  a  duty  legally  enjoyed,  and  would  tend 
to  the  working  of  the  grossest  injustice.37 

It  may  be  said  that  the  action  of  the  court  is  based  on  the  assump- 
tion that  the  inferior  tribunal  has  refused  to  exercise  the  discretion 
with  which  it  is  clothed.  For  in  acting  arbitrarily  or  fraudulently  or 
through  unworthy  motives  or  in  conspiring  against  the  rights  of  indi- 
viduals the  board  is  in  fact  acting  against  the  law  itself.  And  hence, 
in  acting  against  the  law,  it  is  submitted  that  the  board  has  not  "abused 
its  discretion,"  but  that  in  contemplation  of  the  law  it  has  actually 
not  "exercised  its  discretion."  On  the  contrary,  however,  it  has  sought 
to  substitute  arbitrary  and  fraudulent  disposition  and  determination  of 
the  question  of  the  honest  discretion  demanded  by  law.  And  conse- 
quently, mandamus  will  lie  to  compel  its  tribunal  to  act  honestly  and 
fairly  or  to  exercise  due  discretion.38 

It  has  been  held  that  a  petition  for  a  writ  of  mandamus  will  not 
lie  to  compel  the  issuance  of  a  license  when,  as  alleged,  an  applicant 
has  been  improperly  rejected.  But  in  such  cases  an  action  for  damages 
against  the  individual  members  of  the  board  will  lie  and  is  the  only 
proper  remedy.  Further,  that  the  jurisdiction  of  the  court  is  not 
dependent  on  the  "manner"  in  which  the  board  has  discharged  its  duty 
when  it  has  been  called  upon  to  exercise  judgment,  but  that  it  does 
depend  on  whether  there  has  been  an  absolute  refusal  to  perform  a 
ministerial  or  judicial  duty.39 


35.  State  v.  Board  (Wash.),  80  Pac.  544. 
State  v.  Cooper,  123  111.  227. 

United  States  v.  Curtis  (D.  C),  38  W.  L.  R.  396. 

36.  State  v.  Board   (Wash.), '80  Pac.  544. 
State  v.  Cooper,  123  111.  227. 

United  States  v.  Curtis  (D.  C),  38  W.  L.  R.  396. 

37.  State  v.  Cooper,  123  111.  227. 

United  States  v.  Curtis  (D.  C),  38  W.  L.  R.  396. 

38.  State  v.  Board  (Wash.),  80  Pac.  544. 

39.  Kennedy  v.  Board,  26  R.  I.  538. 


224 

But  it  would  seem  the  statutory  law  permitting  that  the  better  view 
is  expressed  by  the  Washington  court  "supra"  and  that  the  "manner" 
in  which  a  duty  is  discharged  may  be  of  no  little  importance.40 

It  has  come  to  be  fairly  well  recognized  that  as  long  as  a  man, 
or  a  body  of  men,  fill  any  position  the  law  will  presume  that  when- 
ever any  matter  is  legally  presented  for  action  the  duty  devolving  upon 
them  will  be  performed.  Hence  mandamus  will  not  lie  merely  because 
it  is  to  be  presumed  that  a  board  might  act  arbitrarily  or  unjustly, 
but  the  arbitrary  conduct  or  unjust  act  must  be  definitely  established, 
and  an  application  improperly  refused  before  the  court  can  be  given 
jurisdiction  to  act.41 

Nor  yet  can  a  court  assume  jurisdiction  when  a  board  has  acted 
properly  under  a  valid  law,  and  as  a  consequence  has  in  its  discretion 
rejected  a  candidate.  It  is  not  the  function  of  a  court  to  review  the 
gradings  of  an  applicant's  paper  or  the  like,  and  indeed  it  would  seem 
most  patent  that  neither  a  judge  nor  a  jury  is  fitted  to  arrogate  to 
themselves  such  a  duty.  The  office  and  nature  of  the  writ  of  mandamus 
does  not  make  it  a  remedy  for  erroneous  decisions.42 

§  118. — Unprofessional  Conduct  and  the  Writ  of  Mandamus 
Mandamus  will  not  lie  to  compel  a  board  to  issue  a  license  when 
in  the  discretion  of  the  said  board  the  said  license  has  been  refused 
because  of  "unprofessional  and  dishonorable  conduct."43 

But  a  board  can  under  a  writ  of  mandate  be  compelled  on  an 
application  to  grant  a  proper  hearing  to  determine  as  to  the  character 
of  the  applicant.44 

It  is  the  duty  of  the  board  of  examiners  under  some  laws  to  pass 
on  the  qualifications  of  an  applicant  and  to  use  their  discretion  therein. 
But  in  refusing  a  license  because  of  bad  character,  proper  discretion 
must  be  exercised  and  no  arbitrary  or  hasty  action  taken.  For  it  is 
only  after  a  due  investigation  and  a  proper  hearing  that  an  applica- 


40.  People  v.  Board,  115  111.  180. 
State  v.  Cooper,  123  111.  227. 

State  v.  Board  (Wash.),  80  Pac.  544. 

United  States  v.  Curtis  (D.  C),  38  W.  L.  R.  396. 

41.  State  v.  Adcock  (Mo.),  124  S.  W.  1100. 
Webster  v.  Board,  130  Ky.  191. 

42.  State  v.  State.  32  Minn.  324. 

State  v.  Board  (Wash.),  80  Pac.  544. 

People  v.  Board,  110  111.  180. 

United  States  v.  Curtis  (D.  C),  38  W.  L.  R.  396. 

43.  Morse  v.  Board  (Tex.),  122  S.  W.  446. 
State  v.  Webster,  150  Ind.  607. 

44.  State  v.  Webster,  150  Ind.  607. 


225 

tion  for  a  license  may  be  refused  because  of  improper  or  unprofessional 
conduct.45 

No  person  is  ipso  facto  entitled  to  practice  under  a  subsequent 
law  merely  because  such  person  was  licensed  to  practice  under  a  prior 
law.  But  usually  the  board  or  some  similar  tribunal  is  given  power 
to  review  the  evidence  on  which  such  prior  license  was  obtained,  and 
if  cause  be  found,  to  refuse  to  issue  a  new  license.  The  board  must 
satisfy  itself  upon  a  proper  examination  that  the  prior  license  was 
obtained  without  fraud  or  misrepresentation  and  besides  that  the  appli- 
cant was  morally  a  fit  person  to  engage  in  the  practice  of  medicine. 
And  then  in  its  discretion  the  board  may  refuse  or  grant  the  license 
as  it  may  see  fit.  But  the  board  may  not  by  mandamus  be  compelled 
to  issue  a  license  should  it  have  held  the  applicant  to  have  acted 
improperly.  The  office  of  this  writ  is  simply  to  compel  the  board  to 
act  should  it  have  acted  improperly  or  refused  to  act  in  any  event.*'1 

From  the  inherent  nature  of  the  writ  it  is  found  that  a  board 
cannot  be  restrained  from  revoking  a  license  for  unprofessional  con- 
duct. For  the  office  of  the  writ  of  mandate  is  to  compel  action  not 
to  restrain,  it  being  a  function  of  the  writ  of  prohibition  or  of  the 
injunction  to  prohibit  an  act.  But  the  writ  of  mandamus  might  lie 
to  compel  a  reinstatement  supposing  a  revocation  to  have  been  had 
after  improper  action.  However,  a  court  of  justice  will  not  interfere 
even  in  such  an  instance  when  the  record  which  the  petitioner  desires 
reinstated  was  admittedly  fraudulent  and  made  so  through  a  palpably 
illegal  act  on  the  part  of  said  petitioner,  such  as  erasing  a  date  to 
change  a  temporary  to  a  permanent  license  or  the  like.47 

§  119. — Matriculation 
A  board  having  merely  administrative  or  ministerial  duties  to  per- 
form cannot  act  arbitrarily  and  against  the  great  weight  of  evidence. 
For  example  under  a  law  which  authorized  the  licensing  of  all  appli- 
cants who  had  matriculated  at  a  medical  school  prior  to  a  certain  date, 
a  board  would  have  no  discretion  supposing  an  applicant  had  sub- 
mitted proof  of  his  matriculation  prior  to  that  date  and  no  material 
evidence  contra  thereto  had  been  adduced,  but  would  be  compelled  to 
issue  the  license  as  applied  for.     Under  such  circumstances  a  party 


45.  Morse  v.  Board   (Tex.),  122  S.  W.  446. 
State  v.  Webster,  150  Ind.  607. 

46.  State  v.  Webster,   150  Ind.  607. 
Morse  v.  Board  (Tex.),  122  S.  W.  446. 
Wolf  v.  Saylor,  42  Ore.  546. 

47.  Wolf  v.  Saylor,  42  Ore.  546. 
State  v.  Webster,  150  Ind.  607. 


226 

aggrieved  by  a  refusal  to  issue  a  license  could  apply  to  the  courts  of 
redress  under  a  writ  o  fmandamus.48 

§  120. — Diploma  from  a  Reputable  College 

The  refusal  to  grant  a  license  because  it  has  been  decided  by  a 
board  of  examiners  that  an  applicant  is  not  from  a  college  in  good 
standing  is  not  sufficient  ground  on  which  to  issue  a  writ  of 
mandamus.49 

But  a  court  will  order  the  issuance  of  a  license  and  an  application 
for  a  writ  of  mandamus  will  lie  therefor  should  a  board  arbitrarily 
or  improperly  hold  a  college  to  be  disreputable  and  for  that  reason 
refuse  to  issue  a  license.  And  again  the  failure  to  issue  a  license 
after  a  college  has  been  pronounced  reputable  may  be  enforced  by 
mandamus.50 

In  most  cases  the  board  of  examiners  or  the  like  is  vested  with 
authority  to  use  its  discretion  in  determining  as  to  the  reputability  of 
a  college.  But  once  a  college  has  been  dominated  as  reputable  the 
board  has  exhausted  its  power  and  must  issue  licenses  to  all  graduates 
therefrom,  reserving  of  course  the  right  to  reverse  this  decision  at 
any  time  after  a  due  and  proper  hearing.  The  power  conferred  on  a 
board  of  examiners  is  broad  and  comprehensive  and  in  some  respects 
must  in  their  nature  be  final,  as  the  action  of  the  board  does  not 
depend  on  any  specified  piece  of  evidence  fixed  by  statute,  but  on 
such  facts  as  will  satisfy  the  board.  Hence  it  is  that  the  question  of 
reputability  must  be  decided  on  just  and  fair  principles  and  not  on 
motives  of  selfish  interest  or  to  injure  rival  colleges.  Discretion  vested 
in  official  bodies  must  not  be  exercised  for  the  gratification  of  feelings 
of  malevolence  or  for  the  attainment  of  personal  or  selfish  ends  or 
for  arbitrary  reasons,  but  for  the  public  good.51 

A  board  possesses  a  discretionary  power  to  determine  whether  or 
no  a  college  is  in  good  standing  as  is  required  under  the  statute  and 
may  reject  an  applicant  should  his  college  fail  to  measure  up  to  these 


48.  State  v.  Adcock,  206  Mo.  550. 

49.  People  v.  Board,  110  111.  180. 
State  v.  Cooper,  123  111.  227. 

Van  Vleck  v.  Board  (Cal.),  48  Pac.  223. 
Board  v.  People,  102  111.  App.  614. 
Barmore  v.  Board,  93  Tenn.  619. 
State  v.  Lutz,  136  Mo.  633. 

50.  State  v.  Cooper,  123  111.  227. 
State  v.  Lutz,  136  Mo.  633. 

51.  State  v.  Cooper,  123  111.  227. 

Van  Vleck  v.  Board  (Cal.),  48  Pac.  223. 
Barmore  v.  Board,  21  Ore.  301. 
State  v.  Board,  93  Tenn.  619.   " 


227 

requirements.  And  in  order  that  a  diploma  be  accepted  the  college 
issuing  it  must  be  in  good  standing  at  the  date  of  its  issuance,  for 
it  is  totally  immaterial  if  the  college  be  in  good  standing  subsequent 
thereto.  If  under  such  circumstances  a  board  decide  against  a  college 
such  opinion  is  not  subject  to  review  in  any  court  of  law  under 
mandamus  proceedings. r- 

But  colleges  must  be  afforded  full  opportunity  to  comply  with  the 
requirements  of  the  board.  It  must  be  shown  that  a  given  college  has 
received  a  notice  of  these  requirements.  For  simply  mailing  notices 
without  due  consideration  as  to  the  receipt  is  totally  insufficient.  And 
therefore,  a  writ  of  mandamus  will  issue  to  compel  the  granting  of  a 
license  to  an  applicant  who  is  the  graduate  of  a  college,  especially 
which  it  can  be  proved  that  his  college  has  not  been  duly  notified.53 

§  121. — Requirement  of  a  Four  Years'  Course 

An  applicant  is  not  entitled  to  a  license  who  has  failed  to  complete 

a  de  facto  four  years'  course  in  pursuance  with  the  law.     And  an 

application  for  a  writ  of  mandamus  will  not  lie  to  compel  a  board  to 

issue  a  license  when  it  has  refused  so  to  do,  and  on  these  grounds.54 

§  122. — Requirement  of  a  Diploma  and  an  Examination 
Not  a  few  statutes  require  all  applicants  desirous  of  practicing 
medicine  to  both  present  a  diploma  and  to  submit  to  an  examination 
to  evidence  their  qualifications  to  practice.  These  dual  requirements 
are  entirely  within  the  power  of  the  legislature  and  quite  valid.  It 
is  essential  therefore  that  all  applicants  conform  thereto  and  hence  a 
writ  of  mandamus  will  not  issue  to  compel  a  board  either  to  admit 
an  applicant  to  an  examination  without  the  presentation  of  a  diploma 
or  to  accept  the  diploma  as  sufficient  evidence  of  qualification  and  to 
compel  the  granting  of  a  license,  or  either  one  of  the  two.55 

Boards  are  expressly  given  power  to  pass  on  the  requirements  of 
applicants,  hence  the  courts  cannot  intervene  and  direct  a  board  to 
issue  a  certificate  to  one  whom  the  majority  of  the  board  has  decided 
is  unqualified.  Courts  cannot  by  mandamus  compel  them  to  act  con- 
trary to  the  truth.  Should  a  board  refuse  to  grant  an  examination  to 
one  who  has  presented  his  diploma,  or  who  has  otherwise  proven 


52.  Board  v.  People,  102  111.  App.  614. 

53.  State  v.  Lutz,  136  Mo.  633. 

54.  Moore  v.  Napier,  64  S.  C.  564. 

55.  State  v.  Board  (Wash.),  93  Pac.  515. 
State  v.  Currans,  111  Wis.  431. 


228 

himself  duly  qualified,  as  the  law  may  require,  then  a  court  will  inter- 
vene and  by  mandamus  compel  a  license  to  issue.56 

§  123. — Registration 
Under  the  law  of  Pennsylvania  it  is  required  that  a  physician  must 
duly  register  his  license  in  a  county  medical  register  kept  by  the  protho- 
notary,  who  is  an  officer  of  the  court.  Hence,  if  a  licensed  physician 
should  apply  for  registration  and  be  refused  for  no  good  reason,  then 
any  court  of  proper  jurisdiction  may  by  mandamus  or  other  summary 
order  compel  its  officer  to  perform  his  duty  as  laid  upon  him  by 
statute.57 

§  124. — Licensure  Under  the  Exceptions,  Verifications,  Etc. 

A  law  required  all  who  had  been  licensed  under  a  prior  law  to 
>  deposit  their  licenses  with  the  board  of  examiners  in  order  that  a 
verification  license  might  be  issued  to  them.  An  applicant  who  had 
under  a  prior  law  been  licensed  simply  to  practice  "obstetrics  and  to 
treat  diseases  peculiar  to  women  and  children"  likewise  applied  for  a 
verification  but  was  refused  anything  other  than  a  license  limited  as 
theretofore.  The  applicant  was,  however,  fully  qualified  to  practice 
medicine  in  all  its  branches  and  had  proven  that  fact  in  examination. 
It  was  therefore  held  that  the  applicant  was  entitled  to  an  unlimited 
license  because  fully  qualified  as  well  as  on  the  ground  that  the  board 
was  not  authorized  in  the  first  place  to  issue  a  limited  license.  Hence, 
in  issuing  a  verification  license  the  board  could  not  limit  the  applicant 
to  the  special  field,  but  a  license  must  issue  in  extenso  and  mandamus 
will  lie  for  that  purpose.58 

Under  a  law  authorizing  the  licensure  of  all  who  were  practicing 
a  given  length  of  time  prior  to  the  passage  of  the  said  law,  provided 
such  persons  present  themselves  and  submit  to  an  examination  by  a 
fixed  date  in  pursuance  with  the  said  law,  it  is  essential  to  comply 
specially  with  such  provisions.  The  law  has  reference  only  to  those 
who  were  continuously  practicing  up  to  its  enactment  and  makes  it 
imperative  that  all  applications  for  the  day  set,  otherwise  there  are 
no  grounds  on  which  to  issue  the  writ  of  mandamus.59 


56.  Ewbank  v.  Turner,  134  N.  C.  77. 
State  v.  Baily,  181  111.  512. 

57.  In  re  Campbell,  197  Pa.  581. 

58.  Board  v.  Taylor   (Tex.),  120  S.  W.  446. 
State  v.  Taylor  (Tex.),  129  S.  W.  600. 

59.  Webster  v.  Board,  130  Ky.  191. 
Sherbourne  v.  Board  (Ida.),  88  Pac.  762. 


229 

In  proving  that  applicant  was  practicing  for  the  length  of  time 
required,  it  is  frequently  provided  that  an  affidavit  or  a  statement 
verified  by  oath  be  submitted  to  that  effect.  An  examination  into  the 
facts  is  then  had  by  the  board  and  on  a  negative  finding  the  license 
will  be  refused.  Mandamus  would  not  lie  to  compel  a  different  finding 
or  action  by  the  board.00 

When  the  exception  in  the  law  permits  a  license  to  issue  to  those 
who  were  legally  registered  under  a  prior  law,  which  only  licensed 
those  who  were  graduates  of  a  legally  authorized  medical  college,  it 
is  essential  that  the  applicant  for  the  new  license  did  actually  graduate 
from  a  college.  Hence  a  mere  attendance  for  one  day  would  not  be  a 
compliance  with  the  law  and  such  an  applicant  could  not  compel  the 
board  by  mandamus  to  register  him  as  a  duly  licensed  physician/'1 

But  a  board  cannot  refuse  to  issue  a  license  to  an  applicant  who 
has  fully  complied  with  the  requirements  of  the  prior  law  and  who 
is  now  applying  for  registration  under  the  new  law  on  the  grounds 
that  said  applicant  is  not  a  graduate  of  a  reputable  college,  unless  there 
is  specific  authority  for  such  action  on  the  part  of  the  board,  and 
mandamus  will  lie  to  compel  the  board  to  recognize  such  an  applicant 
supposing  the  board  has  exceeded  its  authority  or  violated  the  law 
by  a  refusal  to  do  so,62 

And  a  board  will  also  be  compelled  to  recognize  the  diploma  of  a 
college  of  a  foreign  state  directly,  which  is  tacitly  recognized  by  per- 
mitting licensees  from  the  foreign  state  to  practice  locally  who  had 
no  other  evidence  of  qualification  than  their  diplomas-  from  the  said 
college  as  a  basis  for  licensure  in  the  said  foreign  state.63 

A  board,  however,  may  under  a  reciprocity  clause  generally  exer- 
cise its  discretion.  And  under  such  a  provision  the  courts  will  not 
attempt  by  mandamus  to  compel  a  license  to  issue  to  an  applicant  even 
should  the  law  provide  for  recognition  of  licentiates  with  his  quali- 
fications. For  his  recognition  is  not  entirely  dependent  on  the  pos- 
session of  the  said  qualifications,  but  in  a  large  measure  on  the  dis- 
cretion of  the  board.  And  therefore,  supposing  the  board  to  have 
acted  justly  in  its  decision  there  can  be  no  possible  ground  for 
complaint.64 

But  mandamus  will  issue  to  compel  the  recognition  of  an  applicant 
under  a  reciprocity  clause  should  the  board  have  illegally  refused  to 


60.  Sherbourne  v.  Board  (Ida.),  88  Pac.  762. 

61.  Metcalf  v.  Board,  123  Mich.  661. 

62.  Vadney  v.  State   (Ida.),  112  Pac.  1046. 

63.  Boucher  v.  State,  19  R.  I.  366. 

64.  Hollis  v.  Board,  82  S.  C.  230. 


230 

do  so.  A  board  cannot  arrogate  to  itself  the  right  to  determine  the 
qualifications  of  applicants  under  a  reciprocity  clause,  but  must  follow 
the  law,  and  any  rules  which  the  board  does  make  must  be  simply  to 
carry  out  the  law  and  not  to  change  it  in  any  way.  Any  contention 
that  a  board  can  absolutely  determine  what  would  constitute  conditions 
equivalent  in  the  face  of  expressed  law  would  seem  to  be  contrary  to 
the  public  policy.  Such  statutes  are  for  the  purpose  of  opening  the 
doors  to  reputable  practitioners  and  to  this  end  give  full  faith  and 
credit  to  the  acts  of  the  board  of  a  neighboring  state  having  equivalent 
conditions.  And  hence  when  a  board  attempts  to  nullify  this  law  by 
changing  these  conditions  it  is  assuming  to  act  arbitrarily  and  illegally. 
Any  person  injured  by  such  action  may  appeal  to  any  court  of  com- 
petent jurisdiction  for  redress  and  the  court  must  act  in  the  premises.65 

§  125. — The  Writ  of  Prohibition 

The  granting  of  a  writ  of  prohibition  is  in  the  sound  discretion  of 
the  court  as  the  very  right  and  justice  of  every  case  require.66 

But  even  so  a  court  cannot  compel  a  board  to  act  or  to  refrain  from 
acting  under  such  a  writ,  for  it  would  seem  the  remedy  does  not  go 
against  such  a  body  as  a  board  of  medical  examiners,  but  that  it  goes 
only  against  a  court  or  a  tribunal  exercising  judicial  functions,  and  a 
board  of  examiners  does  not  exercise  such  a  function.67 

Whether  or  no  the  writ  of  prohibition  will  never  lie  as  against  a 
medical  board  clearly  it  cannot  lie  supposing  the  action  which  was 
sought  to  be  prohibited  was  determined  or  dismissed  prior  to  any 
notice  of  the  writ  being  given.  And  even  a  judgment  rendered  though 
not  finally  entered  would  seem  to  be  sufficient  grounds  for  dismissing 
an  application  for  such  a  remedy.68 

And  again  it  would  seem  if  there  be  a  complete  and  adequate 
remedy  at  law  that  an  application  for  the  writ  of  prohibition  will  not 
lie,  as  clearly  a  court  has  no  jurisdiction  under  such  circumstances.69 

Nor  will  a  court  attempt  by  a  writ,  of  prohibition  to  prevent  a  board 
of  examiners  from  examining  into  and  investigating  charges  of 
alleged  improper  conduct  in  pursuance  with  the  law.  For  the  duties 
of  these  boards  are  of  an  administrative  or  ministerial  character  and 
therefore  as  long  as  its  acts  are  within  the  scope  of  reasonable  dis- 


65.  United  States  v.  Curtis  (D.  C),  38  W.  L.  R.  396. 
Van  Vleck  v.  Board  (Cal.),  48  Pac.  223. 

66.  State  v.  Goodier,  195  Mo.  551. 

67.  State  v.  Goodier,  195  Mo.  551. 

68.  In  re  Roe  Chung  (N.  Mex.),  49  Pac.  592. 

69.  In  re  Roe  Chung  (N.  Mex.),  49  Pac.  952. 


231 

cretion  they  are  free  to  act.  The  mere  fact  that  the  relator  has  been 
licensed  under  a  prior  law  or  the  like  would  not  serve  to  preclude 
the  board  from  acting  in  the  premises.70 

§  126. — The  Writ  of  Injunction 

A  court  will  not  entertain  an  application  for  a  writ  of  injunction 
to  restrain  a  board  from  taking  further  proceedings  to  revoke  a 
license  supposing  the  power  which  the  board  is  seeking  to  exercise  is 
clearly  vested  in  it  under  a  valid  law.  Nor  is  a  board  to  be  precluded 
from  serving  notice  on  the  defendant  and  the  like  although  not 
specifically  empowered  so  to  do  by  the  law,  for  the  board  must  adopt 
some  procedure  to  try  the  case.71 

And  further,  a  petition  for  an  injunction  will  not  lie  at  the  suit  of 
a  medical  school  to  restrain  a  state  board  from  issuing  a  license  on 
allegations  that  the  applicant  is  not  properly  qualified  for  licensure. 
This  was  placed  on  the  ground  that  such  a  body  has  no  legal  interest 
in  the  matter  and  is  not  charged  with  the  duty  of  enforcing  the  law, 
nor  can  it  be  permitted  to  assume  such  functions  even  from  motives 
of  benevolence.  And  again,  supposing  the  license  has  already  issued 
clearly  an  injunction  may  not  issue  to  restrain  such  an  act.  A  court 
cannot  reach  back  and  undo  what  has  been  done  by  writ  of 
injunction.72 

§  127. — The  Writ  of  Certiorari 

Action  may  be  had  by  a  writ  of  certiorari  to  inquire  into  the  legality 
of  any  action  of  a  board  of  examiners.  That  is  on  a  writ  of  certiorari 
a  court  will  review  the  proceedings  of  a  board  of  examiners  to  ascer- 
tain whether  or  no  proper  action  in  the  premises  has    been  had.7a 

Thus  in  determining  whether  or  no  a  college  is  in  good  standing 
a  board  must  not  act  arbitrarily,  but  with  a  due  regard  for  the  rights 
of  all  concerned.  And  in  case  of  arbitrary  action  a  court  may  review 
the  proceedings  on  a  writ  of  certiorari  and  if  the  allegations  be  sub- 
stantiated may  reverse  the  findings  of  the  board.  But  when  an  office 
or  a  board  has  jurisdiction  and  is  given  discretion  the  courts  cannot 
inquire  into  the  correctness  of  the  decisions  upon  matters  of  fact,  nor 
review  the  exercise  of  discretion  given.    The  inquiry  is  limited  exclus- 


70.  State  v.  Goodier,  195  Mo.  551. 
State  v.  State,  34  Minn.  391. 

71.  Wolf  v.  State  (Minn.),  123  N.  W.  1074. 

Rose  v.  Baxter,  81  Ohio  St.  552,  7  Nisi  Prius   (N.  S.)   132. 

72.  University  v.  Paynter,  60  Neb.  338. 

73.  Iowa  v.  Schrader,  87  Iowa  659. 
Raaf  v.  State,  11  Ida.  707. 
Stevens  v.  Hill,  74  Vt.  164. 


232 

ively  to  the  jurisdiction  and  the  legality  of  the  action  taken,  and  if 
the  jurisdiction  actually  existed  and  the  action  taken  was  legal,  then 
the  judgment  of  the  board  must  be  affirmed.  Nor  will  action  taken 
be  deemed  illegal  or  arbitrary  simply  because  no  specific  provision 
was  made  therefor.  The  law  will  always  presume  the  existence  of 
authority  to  do  acts  incidental  and  necessary  to  discharge  any  lawfully 
vested  power.  And  on  a  review  under  a  writ  of  certiorari  such  acts 
should  be  sustained.74 

Again  a  board  is  given  power  to  grant  and  refuse  licenses  and  is 
expected  to  use  its  discretion  therein.  Hence  a  writ  of  certiorari  may 
not  be  had  simply  to  review  action  taken  by  the  board  entirely  consonant 
with  such  discretion,  as  for  example  the  grading  of  examination  papers 
or  the  like.  All  questions  relating  to  bias,  prejudice,  incompetency, 
errors  or  mistakes  of  judgment  should  be  brought  to  the  attention 
of  the  executive  appointing  the  board  as  on  certiorari  it  is  competent 
for  a  court  to  review  only  questions  of  jurisdiction  and  acts  contra- 
vening legal  rights.75 

It  is  submitted  that  through  bias  and  prejudice  legal  rights  may  be 
contravened,  and  while  these  may  not  be  reviewable  on  a  writ  of 
certiorari,  strictly  speaking,  yet  any  one  aggrieved  thereby  may  have 
recourse  to  the  courts,  as  under  a  writ  of  mandamus  in  a  proper  case, 
and  is  not  left  simply  to  the  possibility  of  action  by  an  execution. 
But  all  matters  of  this  nature  are  oftentimes  covered  by  statute,  hence 
it  is  advisable  to  refer  in  all  cases  to  the  specific  law  of  any  given  state 
as  to  the  proper  course  to  take.™ 

Finally  a  writ  of  certiorari  will  not  issue  to  review  proceedings  of  a 
board  on  the  revocation  of  a  license  supposing  the  defendant  although 
properly  cited  failed  to  appear  before  the  board  for  trial.  For  since 
he  chose  to  stay  away  it  is  not  just  that  he  shall  take  objection  to 
proceedings  had  by  this  extraordinary  writ.  And  further,  he  had  his 
day  in  court  and  must  be  treated  as  having  waived  any  formal  objec- 
tions just  as  much  as  if  he  had  been  present  and  had  held  his  peace.77 


74.  Iowa  v.  Schrader,  87  Iowa  659. 

75.  Raaf  v.  State,  11  Ida.  707. 

76.  State  v.  Board   (Wash.),  80  Pac.  544. 

77.  Stevens  v.  Hill,  74  Vt.  164. 


ABSTRACTS 


OF 


SUPREME    COURT    DECISIONS 


ON  THE 


REGULATION    OF    THE    PRACTICE 
OF    MEDICINE 


.v»/. 


;%> 


ARRANGED    CHRONOLOGICALLY 
BY    STATES 


INDEX  OF  DECISIONS,  ARRANGED  CHRONOLOGICALLY 

BY  STATES 


[Note. — Decisions  abstracted  are  marked  with  an  asterisk.] 


ALABAMA 


Hill  v.  Boddie   (1832),  2  Stew.  &  P.  56. 

Richardson  V.  Dorman's  Executrix   (1856),  28  Ala.  G79. 

Brooks  v.  State  (1889),  88  Ala.  122;  6  So.  902. 

Stough  v.  State  (1883),  88  Ala.  234;  7  So.  150. 

Nelson  v.  State  (1893),  97  Ala.  79;  12  So.  421. 

Harrison  V.  State  (1893),  102  Ala.  170;  15  So.  563. 

Nicholsonv.  State  (1894),  100  Ala.  132;  14  So.  746. 

Bell  v.  State  (1894),  104  Ala.  79;   15  So.  557. 

McCurry  v.  Gibson  (1895),  108  Ala.  451:   18  So.  806;  54  Am.  St.  Kep.  177. 
*Bragg  v.  State  (1902)   134  Ala.  165;  32  So.  767;  58  L.  R.  A.  925. 
"Ligon  v.  State  (1905),  145  Ala.  659;  39  So.  662. 
"Brooks  v.  State  (1906),  146  Ala.  153;  41  So.  156. 

*  McAllister  v.  State  (1908),  156  Ala.  122;  47  So.  161. 
Smith  v.  State  63  So.  28  (s.  c.  aff.  63  So.  70). 

ARIZONA 

Aiton  v.  Board  of  Med.  Exam.  (1911),  114  Pac.  962. 

ARKANSAS 

State  v.  Fussell    (1885),  45  Ark.  65. 

*  Richardson  v.  State  (1886),  47  Ark.  562;  2  S.  W.  187. 
*Gosnell  v.  State  (1889),  52  Ark.  228;  12  S.  W.  392. 
"State  v.  Reed  (1900),  68  Ark.  331;  58  S.  W.  40. 

State  v.  Gallagher,  143  S.  W.  98. 

Thompson  v.  Van  Lear  ( 1906) ,  77  Ark.  506;  92  S.  W.  773;  5  L.  R.  A.  (N.  S.)   588. 

State  v.  McCrary  (1906),  77  Ark.  611;  92  S.  W.  775. 
"Foo  Lun  v.  State  (1907),  84  Ark.  475;  106  S.  W.  946. 
"Fort  v.  City  of  Brinkley  (1908),  87  Ark.  400;  112  S.  W.  1084. 
*State  Med.  Board  v.  McCrary  (1910),  95  Ark.  511;  130  S.  W.  544. 

Williams  v.  State  (1911),  137  S.  W.  927. 

CALIFORNIA 

"Ex  parte  Frazer  (1880),  54  Cal.  94. 

"People  v.  Lee  Wah  (1886),  71  Cal.  80;  11  Pac.  851. 

Ex  parte  McNulty  (1888),  77  Cal.  164;  19  Pac.  237;  11  Am.  St.  Rep.  257. 

In  re  Lowenthal  (1889),  78  Cal.  427;  21  Pac.  7. 

Wong  You  Ting  (1895),  106  Cal.  296;  39  Pac.  627. 

Ex  parte  Tyler  (1895),  107  Cal.  78;  40  Pac.  33. 
"Van  Vleck  v.  Board  of  Dental  Exam.  (1897),  48  Pac.  223. 
"People  v.  Boo  Doo  Hong  (1898),  122  Cal.  606;  55  Pac.  402. 

Billisach  v.  Larkey,  120  Pac.  31. 
"Ex  parte  Gerino  (1904),  143  Cal.  412;  77  Pac.  166;  66  L.  R.  A.  249. 
"Ex  parte  Whitley  (1904),  144  Cal.  167;  77  Pac.  879. 
"Heivitt  V.  Board  of  Med.  Exam.   (1906),  148  Cal.  590;  84  Pac.  39;   113  Am.  St. 

Rep.  315. 
"Arwine  V.  Board  of  Med.  Exam.   (1907),  151  Cal.  499;  91  Pac.  319. 
"Ex  parte  Greenall  (1908),  153  Cal.  767;  96  Pac.  804. 
"Ex  parte  Bohannon  (1910),  14  Cal.  App.  321;  111  Pac.  1039. 


236 

COLORADO 

*  Harding  V.  People  (1887),  10  Colo.  387;  15  Pac.  727. 
"Brown  v.  People  (1888),  11  Colo.  109;  17  Pac.  104. 

*  Riley  v.  Collins  (1901),  16  Colo.  App.  280;  64  Pac.  1052. 
Jones  v.  People,  120  Pac.  125. 

"Head  Camp,  Woodmen  of  the  World  v.  Loeher   (1902),  17  Colo.  App.  247;   68 

Pac.  136. 
*Van  Meter  v.'  Bass  (1907),  40  Colo.  78;  90  Pac.  637. 

*Higgins  V.  State  Board  of  Med.  Exam.  (1909),  46  Colo.  476;  104  Pac.  953. 
Smith  v.  People  (1911),  117  Pac.  612. 
Chenoiveth  v.  State,  135  Pac.  771. 
Graeb  v.  State,  135  Pac.  776. 

DELAWARE 
*State  v.  Durham  (1904),  5  Pennewill  105;  58  Atl.  1024. 

*  State  V.  Lawson  (1908),  6  Pennewill  395;  69  Atl.  1066. 

DISTRICT  OF  COLUMBIA 

"Springer  v.  Dist.  of  Columbia  ( 1904) ,  23  App.  D.  C.  59. 

"Czarra  v.  Board  of  Med.  Sup.  (1904),  24  App.  D.  C.  251;  32  Wash.  Law  Rep.  744. 

*Czarra  v.  Board  of  Med.  Sup.  ( 1905),  25  App.  D.  C.  443;  33  Wash.  Law  Rep.  470. 

District  of  Columbia  v.  Dewalt  (1908),  31  App.  D.  C.  326. 

United  States  v.  Curtis  (1910),  35  App.  D.  C.  247. 
*U.  S.  Ex  rel.  Lewis  B.  Thompson  V.  •/.  B.  Gregg  Curtis  et  al.   (1910),  38  Wash. 
Law  Rep.  396. 

GEORGIA 

Newson  v.  Kindsey  (1857),  21  Ga.  365. 

Hunter  v.  Blount   (1859),  27  Ga.  76. 

Maddox  v.  Boswell  (1860),  30  Ga.  38. 

Wragg  v.  Strickland  (1867),  36  Ga.  559. 

City  of  Savannah  v.  Charlton  (1867),  36  Ga.  460. 
"Blalock  v.  State  (1900),  112  Ga.  338;  37  S.  E.  361. 
"Trentham  v.  Waldrop  (1903),  119  Ga.  152;  45  S.  E.  988. 
"Murray  v.  Williams  (1904),  121  Ga.  63;  48  S.  E.  686. 
"Macon  Railway  &  Light  Co.  v.  Mason  (1905),  123  Ga.  773;  51  S.  E.  569. 
"Bennett  v.  Ware  (1908),  4  Ga.  App.  293;  61  S.  E.  546. 
"Jones  v.  State  (1910),  69  S.  E.  315. 

IDAHO 
Barton  v.  Schmershall  et  al.,  122  Pac.  385. 
"State  v.  Cooper  (1905),  11  Ida.  219;   81  Pac.  374. 
"Raaf  v.  State  Board  (1906),  11  Ida.  707;  84  Pac.  33. 

"Sherburne  et  al.  v.  Board  of  Dent.  Exam.  (1907),  13  Ida.  105;  88  Pac.  762. 
"Vadney  v.  State  Board  of  Exam.  (1911),  112  Pac.  1046. 

ILLINOIS 

Jerome  V.  Bigelovo  (1872),  66  111.  452;   16  Am.  Rep.  597. 

Olin  v.  Bate  (1881),  98  111.  53;  38  Am.  Rep.  78. 

People  v.  Board  of  Dental  Exam.   (1884),  110  111.  180. 
"People  ex  rel.  Sheppard  v.  State  Board  of  Dental  Exam.   (1884),  110  111.  186. 

Williams  v.  People   (1885),  17  111.  App.    (17  Bradw.)    274. 

Williams  v.  People    (1886),  20  111.  App.    (20  Bradw.)    92. 
"Williams  v.  People   (1886),  121  111.  84;  11  N.  E.  881. 
"Illinois  State  Board  of  Dental  Exam.  v.  People  ex  rel.  Cooper   (1887),  123  111. 

227;  13  N.  E.  201. 
"People  for  the  use  of  the  State  Board  of  Health  v.  J.  C.  McCoy  (1888),  125  111. 
289;   17  N.  E.  786. 

People  v.  McCoy  (1889),  30  111.  App.  272. 
"People  v.  Blue  Mountain  Joe  (1889),  129  111.  370;  21  N.  E.  923. 
"People  v.  Arendt  (1895),  60  111.  App.  89. 
"Eastman  v.  People  (1897),  71  111.  App.  236. 


237 

Illinois  Health  University  v.  People  (1897),  166  111.  171;  46  X.  E.  737. 

*  People  ex  rel.  BirkKolz  v.  Jonas  (1898),  173  111.  316;  50  N.  E.  1051. 
*W.  D.  Jones  v.  People  (1899),  84  III.  App.  45:{. 

Independent  Medical  College  v.  People  ex  rel.  Akin  (18!)!)),  182  111.  274. 
"State  Board  of  Health  v.  People  ex  rel.  Bailey  (  18!)!)),  181  111.  512;  54  X.  E.  1011. 

State  Board  of  Health  v.  Rosa  (  1900),  !)1  111.  App.  281. 

Smith  v.  People  (1900),  92  111.  App.  22  (reversed). 
*Watkins  Medical  Company  v.  Paul    (1900),  87  111.  App.  278. 

*  People  V.  B.  E.  Jones   ( 1900),  92  111.  App.  447. 

"State  Board  of  Health  v.  Boss  ( 1901),  191  111.  87;  60  N.  E.  811. 
People  V.  Gordon  (1901),  96  111.  App.  4S6. 
People  v.  Lehr  (1901),  93  111.  App.  505. 

*  People  v.  Gordon  (1902),  194  111.  560;  62  N.  E.  858;  88  Am.  St.  Rep.  165. 

*  People  v.  Lehr  (1902),  196  111.  361;  63  N.  E.  725. 

*  State  Board  of  Health  v.  People  (1902),  102  111.  App.  614. 
People  v.  Smith  (1902),  199  111.  20;  64  N.  E.  972. 
Smith  V.  People  (1903),  108  111.  App.  499. 

"People  v.  Smith  (1904),  208  111.  31;  69  N.  E.  810. 
Cooperman  v.  People  (1904),  113  111.  App.  99. 
People  v.  Lang  don  (1905),  122  111.  App.  38. 

*  People  v.  Langdon  (1906),  219  111.  189;  76  XT.  E.  387. 
Kettles  v.  People  (1906),  221  111.  221;  77  N.  E.  472. 

*Oswald  V.  Nehls  (1908),  233  111.  438;  84  N.  E.  619. 
"People  v.  Trenner  (1908),  144  111.  App.  275. 

People  v.  Weding   (1909),  147  111.  App.  59. 

People,  etc.  v.  Gartenstein   (1911),  248  111.  546;  94  N.  E.  128. 

People  v.  Apfelbaum   (1911),  251  111.  18;  95  N.  E.  995. 
"People,  etc.,  State  Board  of  Health  v.  •/.  A.  Wilson,  249  111.  195. 
"People  V.  W.  D.  Jones,  92  111.  App.  445. 

INDIANA 

Orr  v.  Meek  (1887),  111  Ind.  40;  11  N.  E.  787. 

State  v.  Green  (1887),  112  Ind.  462;  14  N.  E.  352.   ' 
"Eastman  v.  State  (1887),  109  Ind.  278;  10  N.  E.  97;  58  Am.  Rep.  400. 

Wilkins  v.  State  (1888),  113  Ind.  514;  16  N.  E.  192. 
"Benham  v.  State  (1888),  116  Ind.  112;  18  N.  E.  454. 
"State  ex  rel.  Burroughs  v.   Webster    (1898),   150  Ind.  607;   50  N.  E.   750;    41 

L.  R.  A.  212. 
"Ferner  v.  State  (1898),  151  Ind.  247;  51  N.  E.  360. 
"State  Board  of  Med.  Registration  and  Exam.  v.  Coffin  (1899),  152  "Ind.  439;  53 

N.  E.  458. 
"May field  v.  Nale  (1901),  26  Ind.  App.  240;  59  N.  E.  415. 
"Curryer  v.  Oliver  (1901),  27  Ind.  App.  424;  60  N.  E.  364;  61  N.  E.  593. 
"Parks  V.  State   (1902),  159  Ind.  211;  64  N.  E.  862;  59  L.  R.  A.  190. 
"Spurgeon  v.  Rhodes   (1906),  167  Ind.  1;   78  N.  E.  228. 
"Witty  v.  State  (1910),  90  N.  E.  R.  627. 
"Melville  V.  State  (1910),  173  Ind.  352;  90  N.  E.  467. 

IOWA 

"State  v.  Mosher  (1889),  78  la.  321;  43  N.  W.  202. 

"Iowa  Eclec.  Medical  College  Ass'n  v.  Schrader  (1893),  87  la.  659;  55  N.  W.  24; 

20  L.  R.  A.  355. 
"State  v.  Burk   (1893),  88  la.  661;  56  N.  W.  180. 
"State  V.  Blair  (1894),  92  la.  28;  60  N.  W.  486. 

Traer  v.  State  Board  of  Med.  Evam.   (1898),  106  la.  559;  76  N.  W.  833. 
"State  v.  Bair  (1900),  112  la.  466;  84  N.  W.  532. 
"State  v.  Heath  (1904),  125  la.  585;  101  N.  W.  429. 
"State  v.  Edmunds  (1904),  127  la.  333;  101  N.  W.  431. 

State  v.  Bonham   (1895),  86  la.  252;  65  N.  W.  154. 
"State  v.  Wilhite  (1906),  132  la.  226;  109  N.  W.  730. 
"State  v.  Kendig  (1907),  133  la.  164;   110  N.  W.  463. 


238 

*City  of  Fairfield  V.  Shallenberger  (1907),  135  la.  615;   113  N.  W.  459. 
*State  v.  Bresee  (1907),  137  la.  673;   114  N.  W.  45. 
* State  V.  Taylor  (1908),  140  la.  138;   118  N.  W.  301. 
*State  v.  Miller   (1908),  138  la.  28;    115  N.  W.  493. 

*  Smith  v.  State  Board  of  Med.  Exam.  (1908),  140  la.  66;  117  N.  W.  1116. 

*  State  v.  Miller  (1910),  146  la.  521;  124  N.  W.  167. 

*  State  v.  Yates   (1910),  145  la.  332;   124  N.  W.  174. 

*  State  v.  Adkins   (1910),  145  la.  671;   124  N.  W.  627. 
"State  v.  Corioin  (1911),  131  N.  W.  659. 

KANSAS 

•Underwood  V.  Scott  (1890),  43  Kan.  714;  23  Pac.  942. 

City  of  Girard  v.  Bissell  (1890),  45  Kan.  66;  25  Pac.  232. 

State  v.  Wilson  (1900),  61  Kan.  791;  60  Pac.  1054. 
"Sate  V.  Wilson  (1901),  62  Kan.  621;  64  Pac.  23;  52  L.  E.  A.  679. 
*Westbrook  v.  Nelson  (1902),  64  Kan.  436;  67  Pac.  884. 

*  State  v.  Wilcox  (1902),  64  Kan.  789;  68  Pac.  634. 

Meffert  V.  State  Board  (1903),  66  Kan.  710;  72  Pac.  247;  1  L.  R.  A.  (N.  S.)   811. 
"State  v.  Huff   (1907),  74  Kan.  585;  90  Pac.  279. 
"State  v.  Johnson  (1911),  84  Kan.  411;   114  Pac.  390. 

Green  v.  Hodges,  138  Pac.  605. 

KENTUCKY 

Ballard  v.  C.  &  0.  By.,  139  S.  W.  771. 

Hargan  v.  Purdy  (1892),  93  Ky.  424;  20  S.  W.  432;   14  Ky.  Law  Rep.  383. 
"Driscoll  v.  Commonwealth  (1892),  93  Ky.  393;  20  S.  W.  431;  14  Ky.  Law.  Rep. 
376. 
Commonwealth  v.  Rice  (1892),  93  Ky.  393;  20  S.  W.  431;  14  Ky.  Law  Rep.  376. 
"Nelson  V.  State  Board  of  Health  (1900),  108  Ky.  769;  57  S.  W.  501;  22  Ky.  Law 

Rep.  438;   50  L.  R.  A.  383. 
"Matthews  v.  Murphy  (1901),  23  Ky.  Law  Rep.  750;  63  S.  W.  785;  54  L.  R.  A.  415. 
"Wilson  v.  Commonwealth  (1904),  119  Ky.  769;  26  Ky.  Law  Rep.  685;  82  S.  W. 

427. 
"Louisville  College  of  Phar.  V.  City  of  Louisville   ( 1904 ) ,  26  Ky.  Law  Rep.  825 ; 

82  S.  W.  610. 
"Webster  v.  State  Board  of  Health   (1908),  130  Ky.  191;  113  S.  W.  415. 

LOUISIANA 

Quarles  V.  Evans  (1852),  7  La.  Ann.  543. 

Czarnoioski  V.  Succession  of  Zeyer  (1883),  35  La.  Ann.  796. 
"Allopathic  State  Board  of  Med.  Exam.  v.  Fowler  (1898),  50  La.  Ann.  1358;  24 

So.  809. 
"State  v.  Lee   (1901),  106  La.  400;  31  So.  14. 
"State  v.  Howard  (1908),  120  La.  311;  45  So.  260. 

MAINE 

Towle  V.  Marrett  (1824),  3  Me.   (3  Greenl.)   22;   14  Am.  Dec.  206. 

Thompson  v.  Hazen  (1845),  25  Me.  104. 
"Bibber  v.  Simpson  (1871),  59  Me.  181. 

Wheeler  v.  Sawyer  (1888),  15  Atl.  R.  67. 
*  State  v.  Bohemier  (1902),  92  Me.  257;  52  Atl.  643. 

MARYLAND 

Berry  v.  Scott  ( 1827 ) ,  2  Har.  &  G.  92. 

Manger  v.  Board  of  State  Med.  Exam.   (1900),  90  Md.  659;  45  Atl.  891. 
"State  v.  Enowles  (1900),  90  Md.  646;  45  Atl.  877;  49  L.  R.  A.  695. 
"Scholle  v.  State  (1900),  90  Md.  729;  46  Atl.  326. 
"Watson  V.  State  (1907),  105  Md.  650;  66  Atl.  635. 


239 

MASSACHUSETTS 

Spaulding  v.  Alford  (1822),  1  Pick.   (Mass)   33. 
"Hewitt  V.  Charier  (1835),  16  Pick.    (.Muss.)    353. 

Wright  V.  Lanckton  (1837),  3G  Mass.   (19  Pick.)  288. 

Hewitt  V.  Wilcox    (1840),  42  Mass.    (1    .Mote.)    154. 
*Higgins  v.  McCabe  (1878),  12G  Mass.  13;  30  Am.  Rep.  G42. 

*  Commonwealth  v.  St.  Pierre  (1800),  175  Mass.  48;  55  N.  E.  482. 
"Commonwealth  v.  Hartford  ( 1907 ) ,  193  Mass.  464 ;  79  N.  E.  784. 

*  Commonwealth  v.  Porn  (1907),  196  Mass.  326;  82  N.  E.  31. 

*  Commonwealth  v.  Jewelle  (1908),  199  Mass.  558;  85  N.  E.  858. 

MICHIGAN 

Sutton  v.  Facey  (1847),  1  Mich.   (Man.)  243. 
"People  v.  Phippin  (1888),  70  Mich.  0;  37  X.  W.  888. 
"Metcalf  V.  Michigan  State  Board  of  Registration  in  Medicine  (1900),  123  Mich. 

661;  82  N.  W.  512. 
"People  v.  Reetz  (1901),  127  Mich.  87;   86  N.  W.  396. 
White  v.  Lapeer  Circuit  Judge   (1903),  133  Mich.  93;  94  N.  W.  601. 
Mills  v.  State  Board  of  Osteopathic  Registration  and  Exam.   (1904),  135  Mich. 
525;  98  N.  W.  19. 
"Hooper  v.  Batdorff   (1905),  141  Mich.  353;    104  N.  W.  667. 
"Kennedy  v.  State  Board  of  Registration  in  Medicine  (1906),  145  Mich.  241;  108 
N.  W.  730. 

MINNESOTA 

"State  ex  rel.  Powell  v.  State  Board  (1884),  32  Minn.  324;  54  Am.  Rep.  575;  20 

N.  W.  238. 
"State  ex  rel.  Chapman  V.  State  Board  (1885),  34  Minn.  387;  26  N.  W.  123. 
"State  ex  rel.  Feller  v.  State  Board  (1885),  34  Minn.  391;  26  N.  W.  125. 

*  State  v.  Fleischer  (1889),  41  Minn.  69;  42  N.  W.  696. 

*  State  v.   Vandersluis   (1889),  42  Minn.  129;  43  N.  W.  789;  6  L.  R.  A.  119. 
"Steivart  v.  Raab   (1893),  55  Minn.  20:  56  N.  W.  256. 

*  State  v.  Oredson  (1905),  96  Minn.  509;   105  N.  W.  188. 
"State  V.  Taylor    (1908),  106  Minn.  218;    118  X.  W.   1012. 

"Wolf  v.  State  Board  of  Med.  Exam.   (1909),  109  Minn.  360;  123  N.  W.  1074. 

MISSISSIPPI 

Bryant  V.  State  (1836),  2  Miss.   (1  How.)   351. 

Dee  v.  State  (1891),  68  Miss.  601;  9  So.  356. 
*Bohn  v.  Lowery  (1900),  77  Miss.  424;  27  So.  604. 
"Hayden  v.  State  (1903),  81  Miss.  291;  33  So.  653;  95  Am.  St.  Rep.  471. 

MISSOURI 

Atkinson  v.  School  Osteopathy,  144  S.  W.  816. 

State  v.  Hereford   (1850),  13  Mo.  3. 

State  v.  Francis    (1880),  8  Mo.  App.  584    (memorandum). 

State  v.  Little   (1882),  76  Mo.  52. 

State  v.  Hale   (1884),  15  Mo.  606. 

State  ex  rel.  Granville  v.  Gregory  et  al.  (1884),  83  Mo.  123;  53  Am.  Rep.  565. 

State  ex  rel.  Hathaway  V.  State  Board  of  Health  (1890),  103  Mo.  22;   15  S.  W. 
322. 

State  v.  Hathaway  (1891),  106  Mo.  236;   17  S.  W.  299. 

State  v.  State  Board  of  Health  (1891),  103  Mo.  22;   15  S.  W.  322. 
"State  v.  Hathaway  (1893),  115  Mo.  36;   21  S.  W.  1081. 

State  v.  Smith  (1895),  60  Mo.  App.  283. 
"State  ex  rel.  Johnston  v.  Luts  et  al.  (1896),  136  Mo.  633;  38  S.  W.  323. 

State  v.  Morgan  (1902),  96  Mo.  App.  343;  70  S.  W.  267. 

*  State  v.  Davis  (1906),  194  Mo.  485;  92  S.  W.  484;  4  L.  R.  A.   (N.  S.)   1023. 
"State  ex  rel.  Mc Anally  V.  Goodier  (1906),  195  Mo.  551;  93  S.  W.  928. 

"State  ex  rel.  Crandall  v.  Mcintosh  et  al.   (1907),  205  Mo.  589;   103  S.  W.  1078. 


240 

*  State  ex  rel.  McCleary  v.  Adcock  et  al.    (1907),  206  Mo.  550;   105  S.  W.  270; 
121  Am.  St.  Rep.  681. 

State  v.  McCleary  (1908),  130  Mo.  App.  527;  109  S.  W.  638. 
*State  ex  rel.  Abbott  et  al.  v.  Adcock  et  al.  (1910),  225  Mo.  335;  124  S.  W.  1100. 
"State  v.  Blumenthal    (1910),  141  Mo.  App.  502;   125  S.  W.  1188. 
"State  v.  Hellscher  (1910),  150  Mo.  App.  230;  129  S.  W.  1035. 
"State  v.  Carson  (1910),  231  Mo.  1;  132  S.  W.  587. 

State  V.  Smith  (1911),  233  Mo.  242;   135  S.  W.  465. 

MONTANA 

State  v.  Board  of  Med.  Exam.   (1890),  10  Mont.  162;  25  Pac.  440. 
State  V.  Schultz  (1892),  11  Mont.  429;  28  Pac.  643. 
"Craig  v.  Board  of  Med.  Exam.   (1892),  12  Mont.  203;  29  Pac.  532. 
State  ex  rel.  Kellogg   v.   District   Court  of  First  Judicial   District    (1893),   13 

Mont.  370;  34  Pac.  298. 
State  v.  Kellogg  (1894),  14  Mont.  451;  36  Pac.  1077. 
State  v.  Kellogg  (1894),  14  Mont.  426;  36  Pac.  957. 

State,  v.  District  Court  of  First  Judicial  District  (1897),  19  Mont.  501;  48  Pac. 
1104. 
"State  ex  rel.  State  Board  V.  First  Judicial  Court  of  Montana  ( 1901 ) ,  26  Mont. 

121;  66*Pac.  754. 
"State  ex  rel.  Kiddell  et  al.  V.  District  Court    (1902),   27  Mont.   103;    69.   Pac. 

710. 
"Leggat  v.  Gertick  (1907),  35  Mont.  91;  88  Pac.  788. 
"State  ex  rel.  Gattan  v.  District  Court  (1909),  39  Mont.  134;  101  Pac.  961. 

NEBRASKA 

■Dogge  v.  State  (1885),  17  Neb.  140;  22  N.  W.  348. 

Denton  v.  State  (1887),  21  Neb.  445;  32  N.  W.  222. 
"Gee  Wo  v.  State  (1893),  36  Neb.  241;  54  N.  W.  513. 
"State  v.  Busioell  (1894),  40  Neb.  158;  58  N.  W.  728;  24  L.  R.  A.  68. 

O'Connor  v.  State  (1895),  46  Neb.  157;  64  N.  W.  719. 

Jones  v.  State  (1896),  49  Neb.  609;  68  N.  W.  609. 

Colder  V.  Lund  (1897),  50  Neb.  867;  70  N.  W.  379. 
"State  v.  Paul  (1898),  56  Neb.  369;  76  N.  W.  861. 
"Lincoln  Med.  College  v.  Poynter  (1900),  60  Neb.  228;  82  N.  W.  855. 
"Little  v.  State  (1900),  60  Neb.  749;  84  N.  W.  248;  51  L.  R.  A.  717. 
"Sofield  v.  State  (1901),  61  Neb.  600;  85  N.  W.  840. 

State  Electro-Med.  Institute  v.  State   (1905),  74  Neb.  40;   103  N.  W.  1078. 
"State  Electro-Med.  Institute  v.  Plainer  (1905),  74  Neb.  23;   103  N.  W.  1079. 
"Munk  v.  Frink  (1905),  75  Neb.  172;   106  N.  W.  425. 

Walker  v.  McMahn  (1905),  75  Neb.  179;  106  N.  W.  427. 

State  v.  Walker  (1905),  75  Neb.  177;  106  N.  W.  427. 
"Munk  v.  Frink  (1908),  81  Neb.  631;  116  N.  W.  525. 
"Mathews  v.  Hedlund  (1908),  82  Neb.  825;   119  N.  W.  17. 

Walker  v.  McMahan  (1908),  81  Neb.  640;   116  N.  W.  528. 

Village  of  Dodge  v.  Guidinger  (1910),  87  Neb.  349;  127  N.  W.  122. 

Wilson  v.  State  (1911),  131  N.  W.  223. 

Whiteside  v.  Adams  Express  Co.  (1912),  131  N.  W.  953. 

NEVADA 

"Ex  parte  Spinney  (1875),  10  Nev.  323. 
"State  v.  Lee  (1905),  28  Nev.  380;  82  Pac.  229. 

NEW  HAMPSHIRE 

"Gage  v.  Censors  of  N.  E.  Elec.  Med.  Soc.  ( 1884),  63  N.  H.  92;  56  Am.  Rep.  492. 
"State  v.  Pennoyer  (1889),  65  N.  H.  113;  18  Atl.  878;  5  L.  R.  A.  709. 
"Hart  v.  Folsom  (1900),  70  N.  H.  213;  47  Atl.  603. 
Brown  v.  Grenier  (1905),  73  N.  H.  426;  62  Atl.  590. 


241 

NEW  JERSEY 

State  v.  Board  of  Health  of  Hudson  County  (1891),  52  N.  .J.  Law   (24  V  room) 
594;  22  Atl.  22C. 

Mayer  v.  State   (1899),  63  N.  J.  L.  35;  42  Atl.  772. 

Mayer  V.  Hiate    (1900),  04  N.  J.  L.  323;  45  Atl.  024. 
'■Shilc  V.  Chapman   (1903),  69  N.  J.  L.  464;  55  Atl.  94.       , 
*State  v.  Herring  (1904),  70  N.  J.  L.  34;  56  Atl.  670. 

mate  v.   Chapman   (1904),  70  N.  J.  L.  339;  57  Atl.  1133. 

State  v.  Herrinq   (1905),  60  Atl.  1134. 

Frascella  v.  Board  of  Med.  Exam.  (1911),  79  Atl.  1063. 

NEW  MEXICO 

*In  re  Roe  Chung  (1897),  9  N.  M.  130;  49  Pac.  952. 

*  Territory  v.  Newman  (1905),  13  N.  M.  98;  79  Pac.  706,  813. 

"Territory  V.  Lotspeich    (1908),   14  N.  M.  412;    94   Pac.    1025. 

NEW  YORK 

Sheldon  V.  Clark  (1806),  1  Johnson  Rep.  513. 

Timmerman  v.  Morrison  (1817),  14  Johnson  369. 

In  re  Smith  (1833),  10  Wend.  449. 
''Thompson  v.  Staats  (1836),  15  Wend.  395. 

Terier  v.  Dare,  131  N.  Y.  Suppl.  51. 

Bailey  v.  Mogg  (1847),  4  Denio  60. 

Cosi  v.  Moretzek  (1855),  4  E.  D.  Smith  1. 
* Smith  v.  Lane   (1881),  24  Hun.   (N.  Y.)   632. 

People  v.  Nyce  (1884),  34  Hun.  298. 

People  v.  Fulda  (1886),  4  N.  Y.  C.  R.  133. 
"People  v.  Fulda  (1889),  52  Hun.  65;  4  N.  Y.  Suppl.  945;  7  N.  Y.  C.  R.  1. 

Martino  v.  Kirk  (1890),  55  Hun.  474;  8  N.  Y.  Suppl.  758. 

City  of  New  York  v.  Bigelow  (Com.  PI.  N.  Y.,  1895),  13  Misc.  Rep.  42;  34  N.  Y. 
Suppl.  92. 

People  v.  Hawker  (1897),  152  N.  Y.  234;  46  N.  E.  607. 

*2V.  Y.  County  Med.  Assoc,  v.  City  of  N.  Y.  (1900),  32  Misc.  116;  65  N.  Yr.  Suppl. 
531. 

Evitt  v.  Maass   (1901),  72  N.  Y.  Suppl.  158;   64  App.  Div.  382. 
"Ottaivay  v.  Loivden  (1902),  172  N.  Y.  129;  64  N.  E.  812. 

People  v.  Pierson  (1903),  176  N.  Y.  201;  68  N.  E.  243;  63  L.  R.  A.  187. 
"People  v.  Allcutt  (1907),  117  App.  Div.  546;  102  N.  Y.  Suppl.  678. 
"People  v.  Somme    (1907),  120  App.  Div.  20;    104  N.  Y.  Suppl.  946. 

People  v.  Somme   (1907),  190  N.  Y.  541;  83  N.  E.  1128. 

People  v.  Allcutt  (1907),  189  N.  Y.  517;  81  N.  E.  1171. 

People  v.  John  H.  Woodbury  Dermatological  Institute    (1908),   124  App.  Div. 
877;  109  N.  Y.  Suppl.  578. 

Banclel  v.  Dept.  of  Health  of  City  of  N.  Y.  (1908),  127  App.  Div.  382;  111  N.  Y. 
Suppl.  431. 
"People  v.  John  H.  Woodbury  Dermatological  Institute    (1908),  192  N.  Y.  454; 

85  N.  E.  697. 
"People  v.  Dudenhausen  (1909),  130  App.  Div.  760;  115  N.  Y.  Suppl.  374. 
"Bandei  v.  Dept.  of  Health  of  the  City  of  N.  Y.  (1909),  193  N.  Y.  133;  85  N.  E. 

1067. 
"People  v.  Reid  (1909),  135  App.  Div.  89;  119  N.  Y.  Suppl.  866. 
"In  re  Cooperative  Law  Co.   (1910),  198  N.  Y.  479;  92  N.  E.  15. 
"People  v.  Mulford  (1910),  140  App.  Div.  716;  125  N.  Y.  Suppl.  680. 
"Schmidt  v.  Med.  Soc.  of  N.  Y.  County    (1911),  142  App.  Div.   635;    127  N.  Y. 
Suppl.  365. 

People  v.  Cole    (1914). 

NORTH  CAROLINA 

Puckett  v.  Alexander  (1889),  102  N.  C.  95;  8  S.  E.  767;  3  L.  R.  A.  43. 
"State  v.  Van  Doran  (1891),  109  N.  C.  864;  14  S.  E.  32. 
"State  v.  Call  (1897),  121  N.  C.  643;  28  S.  E.  517. 


242 

*State  V.  Welch  (1901),  129  N.  C.  579;  40  S.  E.  126. 

*  State  V.  McKnight  (1902),  131  N.  C.  717;  42  S.  E.  580;  59  L.  R.  A.  187. 
"State  v.  Biggs   (1903),  133  N.  C.  729;  46  S.  E.  401;  64  L.  R.  A.  139;  98  Am. 

St.  Rep.  731. 
"Ewbank  V.  Turner  (1903),  134  N.  C.  77;  46  S.  E.  508. 

OHIO 

Jordan  v.  Overseers  of  Dayton  (1829),  4  Ohio  (4  Ham.)   294. 

Nichols  V.  Poulson  (1834),  6  Ohio  (6  Ham.)  305. 
*Musser's  Executor  v.  Chase  (1876),  29  Ohio  St.  577. 

Wert  v.  Clutter  (1881),  37  Ohio  St.  347. 

State  v.  Prendergast  (1894),  8  Ohio  Cir.  Ct.  R.  401. 

Kroioenstrot  V.  State  (1897),  15  Ohio  Cir.  Ct.  R.  73;  8.  O.  C.  D.  119. 
"France  v.  The  State  (1897),  57  Ohio  St.  1 ;  47  N.  E.  1041. 
"Hale  v.  The  State  (1898),  58  Ohio  St.  676;  51  N.  E.  154. 

State  v.  Gardner  (1898),  58  Ohio  St.  599;  51  N.  E.  136;  41  L.  R.  A.  689;  65  Am. 
St.  Rep.  785. 

*  State  V.  Liffring  (1899),  61  Ohio  St.  39;  55  N.  E.  168;  46  L.  R.  A.  334;  76  Am. 

St.  Rep.  358. 
State  v.  Eygeia  Med.  College  (1899),  60  Ohio  St.  122;  54  N.  E.  86. 
"State  v.  Gravett  (1901),  65  Ohio  St.  289;  62  N.  E.  325;  55  L.  R.  A.  791;  87  Am. 
St.  Rep.  605. 

*  State  V.  Marble  (1905),  72  Ohio  St.  21;  73  N.  E.  1063;  70  L.  R.  A.  835;  106  Am. 

St.  Rep.  570. 

*  State  V.  Laylin  (1905),  73  Ohio  St.  90;  76  N.  E.  567. 

"Rose  v.  Baxter  et  al.    (1909),  81  Ohio  St.  522;    (7  Nisi  Prius.  N.  S.  132). 
State  v.  Morrell,  5  N.  E.  133. 
State  v.  Ohio  State  Med.  Board,  60  Ohio  St.  21;  53  N.  E.  298. 

OKLAHOMA 

Weeden  V.  Arnold  (1897),  5  Okla.  578;  49  Pac.  915. 
"Gulley  v.  Territory  (1907),  91  Pac.  1037. 
"State  v.  Harmon  (1909),  3  Okla.  C.  R.  68;  104  Pac.  370. 

OREGON 

"Barmore  V.  State  Board  (1891),  21  Ore.  301;  28  Pac.  8. 

State  v.  Randolph   (1892),  23   Ore.  74;   31  Pac.  201;   37  Am.  St.  Rep.  655;   17 
L.  R.  A.  470. 

State  V.  Estes  (1898),  34  Ore.  196;  52  Pac.  571. 

Miller  v.  Board  of  Med.  Exam.  (1898),  33  Ore.  5;  52  Pac.  763. 
"In  re  Ferdon  (1899),  57  Pac.  376. 
"Volp  v.  Saylor  (1903),  42  Ore.  546;  71  Pac.  980. 

State  V.  Eisen,  123  Pac.  52. 

PENNSYLVANIA 

Commonwealth  v.  Irving  (1878),  1  Sus.  Leg.  Chron.  69. 

Commonwealth  v.  Taylor   (1S83),  2  Kulp  364. 

In  re  Bauer  (1886),  4  Atl.  913. 

Commonwealth  v.  Ege   (1886),  l~Pa.  Co.  Ct.  R.  483. 

Ege  v.  Commonwealth   (1887),  9  Atl.  471. 

Peebles  V.  Wayne  County    (Com.  PI.   1891),  10  A.  Co.  Ct.  R.  69. 

Moore  v.  Bradford  County  (1892),  148  Pa.  342;  23  Atl.  896. 

Fishblate  v.  McCullough  (1898),  9  Pa.  Super.  Ct.  147. 

In  re  Medico-Chirurgical  College  of  Philadelphia   (1899),  190  Pa.  121;   42  Atl. 

524. 
"In  re  Campbell  (1901),  197  Pa.  581;  47  Atl.  860. 

Commonwealth  v.  Campell  (1903),  22  Pa.  Super.  Ct.  98. 

Commonwealth  v.   Clymer  (1906),  30  Pa.  Super.  Ct.  61. 

Commontcealth  v.  Densten   (1906),  30  Pa.  Super.  Ct.  631. 

Commonwealth  v.  Densten   (1907),  217  Pa.  423;  66  Atl.  653. 
"Commonwealth  v.  Clymer  (1907),  217  Pa.  302;  66  Atl.  560. 

In  re  First  Church  of  Christ,  Scientist,  6  Pa.  Dist.  Rep.  745. 


243 

RHODE  ISLAM  J 

*Evans  v.  State  Board  of  Health  (1896),  19  It.  I.  312;  33  Atl.  878. 
*Paquin  v.  State  Board  of  Health  (1890),  1!)  R.  I.  305;  33  Atl.  870. 
"Boucher  v.  State  Board  of  Health  (1896),  19  It.  I.  366;  33  Atl.  878. 

*  State  V.  Pirlot   (1897),  20  R.  I.  273;  38  Atl.  656. 

"State  v  Mylod  (1898),  20  R.  I.  632;  40  Atl.  753;  41  L.  R.  A.  428. 

*State  V.  Anthony  (1898),  20  R.  I.  644;  40  Atl.  1135. 

*State  v.  Taft  (1898),  20  R.  I.  645;  40  Atl.  758. 

*State  v.  Beck  (1899),  21  R.  I.  288;  43  Atl.  366. 

*8tate  Board  V.  Roy  (1901),  22  R.  I.  538;  48  Atl.  802. 

*  State  v.  Flanagan  ( 1903 ) ,  25  R.  I.  369. 

*Kenney  v.  State  Board  of  Dentistry  (1904),  26  R.  I.  538;  59  Atl.  932. 
*State  v.  Hefferman  (1906),  28  R.  I.  20;  04  Atl.  284. 
"Macomber  v.  State  Board  of  Health  ( 1906),  28  R.  I.  3;  65  Atl.  263. 
Swarts  v.  Siveny,  85  Atl.  33. 

SOUTH  CAROLINA 

Brown  v.  Mims  (1818),  2  Mill.  Const,  235. 

State  v.  Talley    (1888),  28  S.  C.  589;   0  S.  E.  824. 

*  Moore  v.  Napier  (1902),  64  S.  C.  564;  42  S.  E.  997. 

*Hollis  v.  State  Board  of  Med.  Exam.  (1909),  82  S.  C.  230;  64  S.  E.  232. 
"State  v.  Van  Buren  (1910),  86  S.  C.  297;  68  S.  E.  568. 

SOUTH  DAKOTA 

"State  V.  Yegge  (1905-),  19  S.  D.  234;  103  N.  W.  17;  69  L.  R.  A.  504. 
State  v.  Carlisle  (1908),  22  S.  D.  529;  US  X.  W.  1033. 
State  V.  Yegge  (1909),  23  S.  D.  8;  119  X.  W.  1036. 
State  v.  Doran  (1912),  134  N.  W.  53. 

TEXXESSEE 

State  v.  Haworth  (1891),  91  Tenn.   (7  Pickle)   16;  18  S.  W.  399. 
"Williams  V.  State  Board  Dental  Exam.    (1894),  93  Tenn.    (9  Pickle)    619;   27 

S.  W.  1019. 
"Payne  v.  State  (1904),  112  Tenn.  587;  79  S.  W.  1025. 
"O'Neill  v.  State  (1905),  115  Tenn.  427;  90  S.  W.  627;  3  L.  R.  A.   (X.  S.)   762. 

TEXAS 

State  v.  Goldman  (1875),  44  Tex.  104. 

Carribene  V.  State  (1877),  3  Tex.  App.  262. 

Howard  V.  Parker  (1878),  49  Tex.  236. 

Blasdell  v.  State  (1878),  5  Tex.  App.  263. 
"Smith  v.  State  (1878),  5  Tex.  App.  318. 
"Logan  v.  State  (1878),  5  Tex.  App.  306. 

Ellison  v.  State  (1879),  6  Tex.  App.  248. 

Billiard  v.  State  (1879),  7  Tex.  App.  69. 
"Antle  v.  State  (1879),  6  Tex.  App.  202. 

French  v.  State  (1883),  14  Tex.  App.  76. 

Petit  v.  State  (1889),  28  Tex.  App.  240;  14  S.  W.  127. 

Broiles  V.  State  (1892),  68  S.  W.  685. 

Kenedy  v.  Schultz  (1894),  6  Tex.  Civ.  App.  461;  25  S.  W.  667. 

Hairston  v.  State  (1896),  36  Tex.  Cr.  R.  470;  37  S.  W.  858. 

Ranald  V.  State  (1898),  47  S.  W.  976. 

Dowdell  v.  McBride  (1898),  92  Tex.  239;  47  S.  W.  524. 

Wilson  v.  Tick  (1899),  93  Tex.  88;  53  S.  W.  576. 

Price  v.  State  (1899),  40  Tex.  Cr.  R.  428;  50  S.  W.  700. 

Aldenhoven  v.  State  (1900),  42  Tex.  Cr.  R.  6;  56  S.  W.  914. 

Dean  v.  Campbell  (1900),  59  S.  W.  294. 
"Peterson  v.  Seagraves  (1901),  94  Tex.  390;  60  S.  W.  751. 
"Wicks-Nease  v.  Watt  (1902),  30  Tex.  Civ.  App.  515;  70  S.  W.  1001. 


244 

*Wooley  v.  Bell  (1903),  33  Tex.  Civ.  App.  399;  76  S.  W.  797. 

*  Adams  v.  State  (1904),  45  Tex.  Cr.  R.  566;   78  S.  W.  935. 
Hoice  v.  State  (1904),  78  S.  W.  1064. 

*8tone  v.  State  (1905),  48  Tex.  Cr.  R.  114;  86  S.  W.  1029. 
Fonts  v.  State  (1907),  51  Tex.  Cr.  R.  3;   101  S.  W.  223. 
'Person  v.  State  (1908),  53  Tex.  Cr.  R.  334;   109  S.  W.  935. 

*  Marshall  v.  State  (1909),  56  Tex.  Cr.  R.  205;  119  S.  W.  310. 

*  State  Board  of  Med.  Exam.  v.  Taylor  (1909),  120  S.  W.  R.  574. 
*Ex  parte  Collins   (1909),  57  Tex.  Cr.  R.  2;   121  S.  W.  501. 

* Morse  v.  State  Board  of  Med.  Exam.    (1909),  122  S.  W.  446. 
*Newman  v.  State  (1910),  58  Tex.  Cr.  R.  223;  124  S.  W.  956. 

*  State  Board  of  Med.  Exam.  v.  Taylor  and  wife  (1910),  129  S.  W.  600. 
Lockhart  v.  State   (1910),  124  S.  W.  923. 

Young  v.  State  (1910),  128  S.  W.  1103. 

Newman  v.  State  (1911),  134  S.  W.  688. 

Young  v.  State  (1911),  134  S.  W.  736. 

Germany  v.  State  (1911),  137  S.  W.  130;  62  Tex.  Cr.  R.  297. 

Dankworth  v.  State  (1911),  136  S.  W.  788. 

Berry  v.  State  (1911),  135  S.  W.  631. 

Singh  v.  State,  146  S.  W.  891. 

UTAH 

*PeopleY.  Hasbrouck  (1895),  11  Utah  291;  39  Pac.  918. 
James  v.  Robertson,  117  Pac.  1068. 

VERMONT 

State  v.  Cray,  81  Atl.  450. 
*Warren\.  Saxby  (1840),  12  Vt.  146. 
*Townshend  v.  Gray  et  al.,  Board  of  Censors    (1890),  62  Vt.  373;    19  Atl.  635; 

8  L.  R.  A.  112. 
-Stevens  v.  Hill  (1902),  74  Vt.  164;  52  Atl.  437. 

*  State  v.  Wilson  (1906),  79  Vt.  379;  65  Atl.  88. 

VIRGINIA 
*Whitlock  V.  Commonwealth  (1892),  89  Va.  337;  15  S.  E.  893. 

WASHINGTON 

*Fox  v.  Territory  ( 1884),  2  Wash.  T.  297;  5  Pac.  603. 
* State  v.  Carey  (1892),  4  Wash.  424;  30  Pac.  729. 
State  ex  rel.  Smith  v.  Board  of  Dental  Exam.  (1903),  31  Wash.  492;  72  Pac.  110. 

*  State  V.  Dunham  (1903),  31  Wash.  636;  72  Pac.  459. 
State  v.  Stewart  (1903),  32  Wash.  103;  72  Pac.  1026. 
In  re  Thompson  (1904),  36  Wash.  377;  78  Pac.  899. 
State  v.  Sexton  (1905),  37  Wash.  110;  79  Pac.  634. 

*  State  v.  Brown  (1905),  37  Wash.  106;  79  Pac.  638. 

*  State  v.  Board  of  Dental  Exam.  (1905),  38  Wash.  325;  80  Pac.  544. 

*  State  v.  Lawson  (1905),  40  Wash.  455;  82  Pac.  750. 

State  Med.  Uxam.  Board  v.  Stewart  (1907),  46  Wash.  79;  89  Pac.  475. 

*  State  v.  Staff,  118  P.  416. 

*  State  ex  rel.  Thompson  v.  Board  of  Dental  Exam.  ( 1908),  93  Pac.  515. 

*  State  v.  Thompson  (1908),  48  Wash.  683;  95  Pac.  667. 

*  State  v.  Pollman  (1908),  51  Wash.  110;  98  Pac.  88. 

*  State  v.  Dodson  (1909),  54  Wash.  31;   102  Pac.  872. 

*  State  v.  Hanover  (1909),  55  Wash.  403;  104  Pac  624. 

*  State  v.  Dechmann  (1910),  57  Wash.  690;  107  Pac.  858. 
*In  re  Christensen  et  al.    (1910),  109  Pac.  1040. 

*ln  re  Harold  (1910),  59  Wash.  322;  109  Pac.  1043. 
*In  re  L,ittlef\eld  (1910),  112  Pac.  234. 

State  v.  Greiner  (1911),  114  Pac.  897. 

State  ex  rel.  Brunn  V.  State  Board  of  Med.  Exam.  (1911),  112,  Pac.  746. 


245 

WEST  VIRGINIA 

*  State  v.  Dent  (1884),  25  W.  Va.  1. 

*Btate  v.  Ragland  (1888),  31  W.  Va.  453;  7.  S.  E.  424. 

WISCONSIN 
Rider  v.  Ashland  County  (1849),  87  Wis.  160;  58  N.  W.  230. 
Raynor  v.  State  (1885),  62  Wis.  289;  22  N.  W.  430. 
McNamara  v.  Village  of  Clintonville  (1885),  02  Wis.  207;  22  N.  W.  472;  51  Am. 

Rep.  722. 
Wendel  v.  State  (1885),  G2  Wis.  300;  22  N.  W.  435. 
*In  re  Bruendl's  Will  (1899),  102  Wis.  45;  78  N.  W.  109. 
"State  ex   rel.  Kellogg  v.   Currans    (1901),    111    Wis.   431;    87    N.   W.   501;    50 

L.  R.  A.  252. 
*Schaefferv.  The  State  (1902),  113  Wis.  595;  89  N.  W.  481. 
*State  v.  Chittenden  (1906),  127  Wis.  468;   107  X.  W.  500. 
*State  v.  Schaeffer  (1906),  129  Wis.  459;  109  N.  W.  522. 
"State  v.  Schmidt  (1909),  138  Wis.  53;   119  N.  W.  647. 
Brown  v.  State  (1909),  137  Wis.  543;  119  N.  W.  338. 

WYOMING 
State  V.  Snearly  (1910),  18  Wyo.  341;  107  Pac.  389. 

UNITED  STATES 
*Dent.  v.  W.  Va.  (18S9),  129  U.  S.  114;  32  L.  ed.  623;  9  Sup.  Ct.  Rep.  231. 

*  Hawker  v.  New  York  (1898),  170  U.  S.  189;  18  Sup.  Ct.  Rep.  573;  42  L.  ed.  1002. 
"Reetsv.  Mich.  (1903),  188  U.  S.  505;  23  Sup.  Ct.  Rep.  390;  47  L.  ed.  563. 

Meffert  v.  Packer  (1904),  195  U.  S.  625;  25  Sup.  Ct.  Rep.  790;  49  L.  ed.  350. 
"Watson  v.  State  of  Md.  (1910),  218  U.  S.  173;  30  Sup.  Ct.  R.  644;  54  L.  ed.  987. 
"Collins  v.  Texas   (1912),  32  Sup.  Ct.  Rep.  286. 


ABSTRACTS   OF   SUPREME    COURT    DE- 
CISIONS ON  THE  REGULATION  OF 
THE   PRACTICE  OF  MEDICINE 


OSTEOPATHY   THE   PRACTICE   OF   MEDICINE 
Bragg  v.  The  State,  13 /,  Ala.  165;  32  So.  767;  50  L.  11.  A.  925 

1902 

The  Supreme  Court  holds  that  osteopathy  is  the  practice  of  medicine,  within 
the  meaning  of  the  medical  practice  act  of  the  state.  The  contention  of  the 
defendant  was  that,  as  in  the  practice  of  osteopathy  no  drugs  or  other  medicinal 
substances  are  administered  or  applied  internally  or  externally,  nor  the  knife 
used  or  any  form  of  surgery  resorted  to  in  the  treatment  of  cases,  it  is  therefore 
not  the  practice  of  medicine.  Practitioners  of  this  school,  therefore,  know  noth- 
ing of  the  medicinal  properties  of  drugs  and  other  medicinal  substances  or  of 
their  administration  for  the  cure  of  disease.  Their  method  of  treatment  is 
entirely  external.  It  is  admitted  that  osteopaths  must  know  anatomy,  physi- 
ology, hygiene,  histology  and  pathology,  a  knowledge  of  which  is  evidently  to 
enable  the  osteopath  to  determine  the  disease  with  which  his  patient  is  afflicted 
and  to  aid  him  in  his  system  of  manipulation.  It  is  clear  from  the  evidence 
that  the  osteopathic  practitioner  does  not  make  the  same  application  of  his  rem- 
edies to  all  diseases,  but  applies  such  treatment  as  is  most  remedial  in  the  par- 
ticular disease  which  he  is  called  upon  to  treat.  The  practitioner  of  medicine  is 
required  to  know  anatomy,  physiology,  hygiene,  histology  and  pathology,  but 
must  also  know  how  and  by  what  remedial  agents  the  disease  may  be  cured  or 
alleviated.  The  only  difference,  therefore,  between  the  two  is  the  matter  of 
therapeutics,  that  branch  of  medical  science  which  considers  the  application  of 
remedies  as  a  means  of  cure.  The  result  sought  to  be  accomplished  by  each  is 
the  same,  namely  to  relieve  the  patient's  illness  and  to  cure  him.  Both  are  prac- 
ticing the  art  of  healing  or  curing  human  diseases.  It  is  contended  that  the 
words,  "practice  of  medicine"  as  used  in  the  statutes  includes  only  those  persons 
who  employ  medicinal  substances  or  drugs  as  remedial  agents,  this  contention 
being  based  on  the  proposition  that  the  word  "medicine"  in  its  popular  sense  is 
a  remedial  substance  or  drug,  and  that  the  practice  of  medicine  is  inseparable 
from  the  administration  of  drugs  and  other  medicinal  substances.  This  is  the 
basis  of  the  contention  of  the  defendant  and  if  it  is  fallacious  his  conclusion 
must  be  false.  The  question  then,  is  on  the  correct  interpretation  of  the  words 
"practice  of  medicine."  This  question  the  court  discusses  and  concludes  that  the 
word  "medicine"  has  a  technical  meaning,  is  a  technical  art  or  science  and  as  a 
soience  the  practitioners  of  it  are  not  simply  those  who  prescribe  drugs  or  other 
medicinal  substances  but  that  the  term  is  broad  enough  to  include  and  does 
include  all  persons  who  diagnose  diseases  and  prescribe  or  apply  any  therapeutic 
agent  for  their  cure.  The  court  is  unable  to  find  anything  in  the  history  of 
legislation  on  this  subject  to  controvert  this  conclusion  and  consequently  rules 
that  the  defendant  was  engaged  in  the  practice  of  medicine. 

Regarding  the  constitutionality  of  the  medical  practice  act,  the  court  referred 
to  numerous  cases  in  which  the  constitutionality  of  such  laws  has  been  upheld. 
Regarding  the  contention  of  the  defendant  that  the  Board  of  Medical  Examiners 
discriminated  in  favor  of  regular  physicians,  the  court  ruled  that  if  such  were 
the  fact  the  recourse  for  the  defendant  lay  in  the  civil  courts  and  that  even  if 
the  Board  had  practiced  discrimination  this  was  no  justification  for  violation  of 
the  law  on  the  part  of  the  defendant.  Furthermore,  the  record  does  not  show 
any  attempt  on  the  part  of  the  defendant  to  secure  a  license.  He  rather  chose 
to  construe  the  law  to  suit  his  own  notion  and  engaged  in  the  practice  of  medi- 
cine without  making  any  effort  to  comply  with  its  mandates  or  even  to  have 
the  unjust  discrimination  of  which  he  complains  removed  before  engaging  in 
practice.    The  court  decides  that  the  defendant  was  properly  convicted. 


248 

OSTEOPATHY  THE  PRACTICE  OF  MEDICINE 

Ligon  v.  State,  l.',5  Ala.  659;  39  So.  662 
1906 

This  case  was  tried  on  an  agreed  state  of  facts  similar  in  all  essential  respects 
to  the  case  of  Bragg  v.  State  (V.  S.),  in  which  it  was  held  that  the  practice  of 
osteopathy  was  the  practice  of  medicine  within  the  meaning  of  the  code  provi- 
sions of  that  state.  It  says  that  the  object  of  the  appeal  in  this  (Ligon)  case 
was  to  have  the  Bragg  case  overruled.  Counsel  said,  in  brief:  "It  is  respectfully 
submitted  that  on  review  of  the  point  involved  this  court  should  not  affirm  the 
correctness  of  that  decision,  but  should  depart  from  it."  The  court's  answer  is 
that  the  decision  in  that  (Bragg)  case  was  unanimous.  It  covered  all  of  the 
questions  here  involved,  after  careful  and  mature  consideration.  The  court  has 
reexamined  it,  and  on  reason  and  the  authorities  cited  it  has  been  unable  to  con- 
clude that  it  is  wrong.  It  should  not,  therefore,  be  overruled.  The  court  can 
add  nothing  new  in  this  decision  to  what  was  there  said.  To  attempt  it  would 
be  to  go  over  the  same  grounds  with  inability  to  shed  new  light  on  them. 


POWER  OF  STATE  ASSOCIATION— CERTIFICATE  REQUIREMENTS 

Brooks  v.  State,  U6  Ala.  153;  U  So.  156 

1905 

Section  5333  of  the  code  of  1896  reads:  "Any  person  who  practices  medicine 
or  surgery  without  having  first  obtained  a  certificate  of  qualification  from  one 
of  the  authorized  boards  of  medical  examiners  of  this  state  must,  on  conviction, 
be  fined  not  less  than  $25  nor  more  than  $100."  Section  3262  says:  "The  stand- 
ard of  qualification,  the  method  or  system  and  the  subjects  of  examination  of 
practitioners  of  medicine  shall  be  prescribed  by  the  Medical  Association  of  the 
State  of  Alabama  and  must  be  observed  by  the  boards  of  medical  examiners." 
It  will  be  observed,  the  court  continues,  that  the  lawmakers  have  clothed  the 
Medical  Association  of  the  State  of  Alabama  with  full  authority  to  prescribe 
the  rules  and  regulations  governing  the  issuance  of  certificates  to  medical  prac- 
titioners, and  the  Alabama  statutes  in  this  respect  are  not  only  intended  as  a 
means  of  maintaining  a  high  standard  in  the  ranks  of  the  medical  profession! 
but  are  designed  to  protect  the  public  from  imposition  and  fraud  by  authorizing 
the  state  medical  association  to  prescribe  the  rules  and  restrictions  governing 
the  issuance  of  certificates  to  those  engaged  in  or  desiring  to  engage  in  the  prac- 
tice of  medicine. 

The  state  medical  board  adopted  in  1899  the  following  ordinance:  "Be  it 
ordained  by  the  Medical  Association  of  the  State  of  Alabama  that  hereafter  all 
certificates  conferring  the  privilege  of  practicing  medicine  in  this  state,  issued 
by  county  boards  of  examiners,  shall  be  countersigned  by  the  senior  censor  of 
the  state  association  before  the  same  shall  become  legal  and  valid."  It  is  to 
be  noted,  the  court  says,  that  every  certificate  issued  by  a  county  board  after 
the  adoption  of  the  above  had  to  be  countersigned  by  the  senior  censor,  else  it 
would  be  invalid.  The  state  proved  a  prima  facie  case  against  the  defendant 
(party  first  named,  who  was  convicted  of  a  violation  of  section  5333,  quoted 
above ) ,  who  attempted  to  defend  under  a  certificate  issued  by  the  county  board, 
Jan.  29,  1900,  but  which  had  not  been  countersigned  by  the  senior  censor  of  the 
state,  and  which  was  insufficient,  and  an  objection  by  the  state  to  the  introduc- 
tion of  same  was  properly  sustained. 

There  was  no  error  in  sustaining  the  state's  objections  to  the  defendant's 
attempt  to  introduce  a  diploma  or  proof  of  the  length  of  time  he  had  practiced 
medicine.  These  facts  may  have  been  sufficient  to  authorize  the  county  board 
to  issue  him  a  certificate  without  undergoing  an  examination,  but  could  in  no 
sense  make  valid  a  certificate  not  issued  in  conformity  with  the  rules  of  the 
state  association. 

It  was  not  competent  for  the  defendant  to  show  the  action  of  the  Medical 
Society  of  Marion  County,  since  he  did  not  show  that  it  issued  him  a  certificate 


249 

prior  to  the  adoption  of  the  ordinance  in  1890.  Neither  was  it  competent  to 
show  that  other  physicians  had  no  certificates  or  had  not  stood  examinations. 
If  they  were  violating  the  law,  it  did  not  justify  the  defendant  in  doing  so. 


HAVING  A   DIPLOMA   DOES  NOT   MAKE  A   LICENSED   PHYSICIAN 

McAllister  v.  State,  156  Ala.  122;  Jtl  Ho.  161 

1908 

The  Supreme  Court  of  Alabama  says,  where  it  was  averred  that  a  certain 
person  was  a  licensed  physician,  that  the  fact  that  the  physician  had  a  diploma 
did  not  prove  it,  and  to  allow  him  to  testify  that  he  had  such  a  diploma  was 
incompetent  and  illegal  evidence.  Furthermore,  the  diploma,  if  of  any  value  as 
evidence,  should  have  been  produced,  and  hearsay  evidence  of  its  contents  was 
inadmissible. 


BURDEN  OF  PROOF  OF  REGISTRATION  IS  ON  DEFENDANT 

Richardson  v.   State,  lft  Ark.   562;   2  8.   W.   187 

1886 

The  defendant  was  charged  before  a  justice  of  the  peace  with  practicing  med- 
icine without  license.  Having  been  convicted,  he  appealed  to  the  circuit  court, 
where  he  was  again  tried,  convicted,  and  fined.  He  filed  a  motion  for  a  new  trial 
upon  the  grounds  that  the  affidavit  did  not  charge  a  public  offense,  and  that  the 
verdict  of  the  jury  was  contrary  to  the  weight  of  evidence.  The  court  says  that 
the  statute  prohibits,  under  a  penalty,  all  persons  from  practicing  medieine  or 
surgery,  as  a  profession,  without  being  first  duly  registered  as  a  practitioner  in 
the  office  of  the  clerk  of  the  county  court  of  some  county  in  the  state;  and  it 
defines  a  physician  or  surgeon  to  be  one  who  prescribes  or  administers  medicine 
for,  or  in  any  manner  treats  diseases  or  wounds  for,  pay.  Registration  is  granted 
upon  a  certificate  of  qualification,  after  examination  by  a  medical  board,  or 
lipon  satisfactory  proof  before  the  county  clerk  "that  the  applicant  was  continu- 
ously engaged  in  a  reputable  practice  of  his  profession  for  a  period  of  five  years 
next  before  the  passage  of  the  act  (March  0,  1881).  Such  legislation  is  a  valid 
exercise  of  the  police  power  of  the  state.  The  object  is  to  protect  the  public 
health  against  the  impositions  of  charlatans  and  empirics,  who  pretend  to  exer- 
cise an  art  requiring  skill  without  a  previous  special  training. 

The  law  does  not  require  a  license.  The  act  of  registering  might  be  called 
a  license  to  practice,  just  as  the  enrolment  of  an  attorney  on  a  court  of  record 
is  his  license  to  practice  law.  It  will  be  presumed  that  it  was  properly  explained 
to  the  jury  that  the  offense  for  which  the  appellant  was  on  trial  was  a  failure 
to  register.  Regarding  the  second  assignment, — whether  the  testimony  showed 
that  the  appellant  practiced  medicine,  a  witness  testified,  to  being  present  and 
seeing  the  defendant  treat  a  patient  for  cancer'  and  dropsy,  and  receive  money 
for  his  services.  The  defense  introduced  an  affidavit  from  a  physician  stating 
that  the  defendant  was  a  student  under  him  and  treated  the  patient  in  question 
under  his  direction.  The  court  says  that  the  verdict  is  not  satisfactory  to  the 
court.  It  was  not  a  case  of  conflicting  evidence.  Every  word  of  the  evidence 
can  be  reconciled.  Taken  altogether,  it  fairly  shows  that  the  defendant  rendered 
such  services  as  a  nurse  might  have  rendered,  and  that  the  money  he  received 
was  collected  by  him  as  an  agent,  and  was  paid  over  to  his  principal.  But  the 
weight  of  evidence,  and  the  credibility  of  witnesses,  are  to  be  determined  by  the 
jury.  It  is  the  duty  of  the  trial  court  to  set  aside  a  verdict  which  is  clearly 
against  the  weight  of  the  evidence.  But,  when  the  case  reaches  the  Supreme 
Court,  the  question  is  no  longer  whether  the  evidence  preponderates  on  one  side 
or  the  other,  or  whether  due  credit  has  been  given  to  the  statements  of  a  witness 
who  has  testified  fully  and  fairly,  but  the  question  is  whether  there  is  a  failure 
of  proof  on  a  material  point.     The  court  cannot  order  a  new  trial  because  it 


250 

differs  in  opinion  from  the  circuit  judge  as  to  the  weight  of  the  testimony,  or 
the  truth  or  falsity  of  a  witness. 

"There  were  but  two  questions  of  fact  in  the  case :  ( 1 )  Was  the  defendant 
registered  as  a  physician  or  surgeon?  (2)  If  not,  did  he  practice?  His  own 
witness  said  'he  was  not  eligible  to  the  practice  of  medicine.'  We  take  this  to 
mean  that  he  was  unregistered.  At  any  rate,  if  he  held  a  certificate  of  registra- 
tion, it  developed  upon  him  to  show  it;  this  being  a  fact  particularly  within 
his  own  knowledge.  The  conclusion  is  that  he  administered  medicine  to  a  patient 
for  a  certain  disease;   and  received  money  for  his  services. 

Judgment  affirmed. 


TIME   LIMIT   FOR   REGISTRATION   CONSTITUTIONAL 

Gosnell  v.  State,  52  Ark.  228;  12  S.  W.  392 

1889 

Upon  an  indictment  under  the  act  of  1887,  259,  regulating  the  practice  of 
dentistry  in  this  state,  appellant  was  convicted  and  fined,  and  appealed.  He 
was  a  resident  of  the  state,  and  had  been,  and  was  at  the  date  of  the  passage  of 
the  act,  practicing  dentistry  in  Franklin  county;  he  failed  to  procure  a  certifi- 
cate from  the  board  of  dental  examiners  authorizing  him  to  practice  the  same, 
in  accordance  with  section  5  of  said  act,  within  three  months  after  the  passage 
of  the  same;  he  practiced  dentistry  on  the  10th  of  April,  1888.  The  act  was 
approved  4th  of  April,  1887.  The  board  was  appointed  the  6th  day 
of  May,  1887,  and  organized  the  28th  of  said  month.  After  the 
first  meeting,  there  was  no  other  meeting  of  the  board  before  the 
finding  of  the  indictment.  By  resolution  at  their  first  meeting,  the 
board  fixed  their  annual  meeting  at  such  time  and  place  as  the  State  Dental 
Association  might  hold  its  annual  meetings.  The  substance  of  a  resolution 
passed  by  the  board  at  its  first  meeting,  calling  on  all  dentists  to  come  forward 
and  register,  was  published  in  the  Arkansas  Gazette.  On  the  14th  of  July,  1887, 
appellant  applied  by  letter  to  the  secretary  of  the  board  to  register,  and  was 
informed  that  the  time  had  expired  for  registration,  and  that  he  would  have  to 
come  before  the  board  and  be  examined.  He  afterwards  applied  to  be  registered 
as  of  July  14,  1887,  and  was  not  permitted  to  register.  It  is  contended  that 
the  act  deprived  appellant  of  a  right  to  follow  a  lawful  occupation;  that  it  is 
unreasonable,  unwise,  and  unconstitutional.  Whatever  may  be  thought  of  the 
hardships  the  act  might  work,  it  was  not  impossible  for  the  appellant  to  have 
complied  with  section  5.  It  is  not  to  be  presumed  that  the  board  would  not 
have  acted  upon  the  registration  of  the  name  of  the  applicant.  Had  it  failed 
to  act,  it  might  have  been  compelled  to  do  so  by  mandamus.  The  court  found 
no  case  in  which  such  acts  have  been  declared  unconstitutional.  On  the  con- 
trary, they  have  been  repeatedly  held  to  be  constitutional  by  the  highest  courts. 
It  is  competent  for  the  legislature  to  regulate  the  practice  of  dentistry  and  dental 
surgery  in  such  way  as  will  not  deprive  the  citizens  of  the  right  to  follow  a 
lawful  avocation.  .  While  it  was  and  is  unlawful  to  practice  dentistry  or  dental 
surgery,  after  the  lapse  of  three  months  from  the  passage  of  the  act,  without 
the  requisite  certificate,  the  appellant  may  make  his  application  and  proof  that 
he  was  practicing  at  the  date  of  the  passage  of  the  act,  and  thereupon  he  will 
be  entitled  to  a  certificate  authorizing  him  to  practice.     Affirmed. 


CHARGES  BY  STUDENT  MAKES  PRACTICE  UNLAWFUL 

State  v.  Reed,  68  Ark.  331  58  S.  W.  40 

1900 

In  Arkansas  there  is  a  statute  which  declares  that  it  shall  be  unlawful  for 
any  person  to  practice  or  attempt  to  practice  dentistry  or  dental  surgery,  in  the 
state  of  Arkansas,  without  first  having  received  a  certificate  from  the  board  of 
dental  examiners:  provided,  this  shall  not  be  construed  as  preventing  any  regular 


251 

licensed  physician  from  extracting  teeth,  nor  to  prevent  any  other  person  from 
extracting  teeth,  when  no  charge  is  made  therefor  by  such  person-.  From  this 
language,  the  Supreme  Court  of  Arkansas  holds  that  it  is  impossible  to  escape 
the  conclusion  that  the  performance  of  dental  work,  and  charging  and  receiving 
pay  therefor,  is  practicing  dentistry.  And  it  condemns  the  theory  of  the  trial 
court  in  this  case,  which  seemed  to  be  that,  notwithstanding  this,  yet,  as  the 
party  accused  of  practicing  dentistry  without  first  obtaining  a  certificate  from 
the  board  of  dental  examiners  was,  when  he  did  the  work  in  question,  a  mere 
student,  and  doing  his  work  under  the  direction  of  a  licensed  dentist,  he  was 
not  answerable  to  the  law  on  the  subject.  This  relation  existed  in  this  case 
between  the  accused  and  a  regular  practicing  dentist,  so  far  as  the  dental  work 
in  question  was  concerned,  yet  the  charge  for  the  work  was  not  made  in  the 
name  of  the  licensed  dentist,  nor  was  the  pay  received  by  him.  The  charge  was 
made  by  the  accused  for  himself,  independent  of  his  preceptor,  and  the  pay  was 
received  by  him.  Under  such  circumstances,  the  Supreme  Court  holds,  it  was 
error  for  the  trial  judge  to  instruct  the  jury  that  if  they  believed  that  the 
accused  was  in  the  office  of  the  regular  dentist  mentioned,  anil  was  working  under 
the  latter's  directions  and  advice,  he  should  be  acquitted. 


STATUTE  MUST  BE  FOLLOWED  IX  DEFINING  PRACTICE  OF  MEDICINE 

Foo  Lun  v.  State,  8Jf  Ark.  .',75;  106  8.  TV.  9.',6 

1908 

The  party  appealing  had  been  convicted  of  practicing  medicine  without  first 
having  procured  a  certificate  and  license  as  prescribed  by  the  statutes.  A  wit- 
ness named  Montgomery  testified  for  the  state:  "I  went  up  and  got  some  med- 
icine from  defendant,  paid  him,  and  he  gave  me  a  receipt.  I  was  requested  by 
the  medical  board  to  go  there  to  get  evidence  to  see  whether  or  not  he  was  prac- 
ticing medicine.  He  asked  me  my  symptoms.  He  has  an  office  something  like  a 
doctor's  room."  Cross-examination:  "I  answered  the  questions  he  asked  me. 
He  felt  my  pulse,  and  asked  me  if  I  had  pains.  I  did  not  ask  him  to  feel  my 
pulse  or  tell  him  I  had  stomach  trouble.  I  acted  as  a  detective.  He  didn't  tell 
me  he  only  sold  medicines,  but  he  told  me  to  take  this  until  Wednesday.  I  saw 
other  persons  in  the  waiting-room."  The  state  then  introduced  the  county  clerk, 
who  testified  that  there  was  no  certificate  of  the  state  board  allowing  the  defend- 
ant to  practice  medicine.  This  was  all  the  evidence.  There  was  a  jury  trial  and 
a  verdict  of  guilty. 

A  reversal  of  this  case  was  asked  on  the  ground  that  the  trial  judge  had 
erred  in  instructing  the  jury  that  "by  the  term  of  'practicing  medicine'  it  is 
meant  to  charge  a  person  who  undertakes  to  consider  the  nature  of  the  ailment 
of  a  patient  and  to  prescribe  for  him  a  remedy  therefor;  and  if  you  find  from 
the  evidence  in  this  case  that  defendant  examined  into  or  in  any  manner  con- 
sidered the  physical  ailments  as  represented  to  him  by  the  witness  Montgomery, 
and  prescribed  or  attempted  to  prescribe  a  remedy  therefor,  you  will  find  him 
guilty."     The  Supreme  Court  agrees  that  in  this  there  was  cause  for  reversal. 

A  number  of  the  states,  the  court  says,  have  passed  statutes  regulating  the 
practice  of  medicine.  In  some  instances  the  legislatures  have  undertaken  to 
define  what  is  meant  by  the  phrase  "practice  of  medicine."  In  others  they  have 
not.  In  cases  where  the  legislatures  have  not  undertaken  to  define  the  meaning 
of  the  phrase  it  has  been  construed  to  be  used  in  its  ordinary  and  popular  sense. 
In  cases  where  the  words  "practice  of  medicine"  have  been  defined  by  the  legis- 
latures, the  definition  has  been  followed  by  the  courts. 

Section  5243  of  Kirby's  Digest  (the  Arkansas  statute)  provides  that  "any 
person  shall  be  regarded  as  practicing  medicine,  in  any  of  its  departments,  within 
the  meaning  of  this  act,  who  shall  append  M.D.  or  M.B.  to  his  name;  or  repeat- 
edly prescribe  or  direct,  for  the  use  of  any  person  or  persons,  any  drug  or  med- 
icine or  other  agency  for  the  treatment,  cure  or  relief  of  any  bodily  injury, 
deformity  or  disease."  The  court  thinks  it  was  the  intention  of  the  legislature 
to  define  the  crime  by  the  use  of  the  language  quoted.  The  statute  defines  prac- 
ticing medicine  as  repeatedly  prescribing  or  directing,  etc.     The  trial  court  erred 


252 

in  giving  its  own  meaning  to  these  words  in  the  instruction  quoted,  and  in  not 
denning  them  in  the  meaning  of  the  statute.  It  was  the  duty  of  the  court  to 
give  effect  to  the  intention  of  the  lawmakers  as  embodied  in  the  statute. 


WHAT  CONSTITUTES  MORAL  TURPITUDE  AUTHORIZING  REVOCATION 

OF  LICENSE 

Fort.  v.  City  of  Bririkley,  81  Ark.  .',00;  112  8.  W.  108-', 
1908 

The  Supreme  Court  says,  that  the  statute  of  that  state  provides  that:  "When- 
ever any  physician  and  surgeon  or  person  engaged  in  the  practice  of  medicine  or 
surgery  in  this  state  shall  be  convicted  of  any  crime  and  misdemeanor  involving 
moral  turpitude,  in  addition  to  the  other  penalty  or  penalties  imposed  on  him, 
shall  be  added  a  revocation  of  his  license  to  practice  medicine  and  surgery." — 
Section  5247  of  Kirby's  Digest.  This  section  makes  the  revocation  of  the  license 
a  part  of  the  punishment  for  the  offense,  and  contemplates  that  it  shall  be 
imposed  by  the  court  in  which  the  case  is  tried. 

"Moral  turpitude  is  denned  to  be  an  act  of  baseness,  vileness  or  depravity 
in  the  private  and  social  duties  which  a  man  owes  to  his  fellowmen  or  to  society 
in  general."  Moral  turpitude  implies  something  immoral  in  itself,  regardless  of 
the  fact  whether  it  is  punishable  by  law.  The  doing  of  the  act  itself,  and  not 
its  prohibition  by  statute,  fixes  the  moral  turpitude. 

It  seems  clearly  deducible  from  the  authorities  that  the  words  "moral  turpi- 
tude" had  a  positive  and  fixed  meaning  at  common  law,  and  that  the  illegal  sale 
of  intoxicating  liquors,  not  being  an  offense  punishable  at  common  law,  does  not 
come  within  the  definition  of  a  crime  involving  moral  turpitude.  In  a  statute 
using  a  word,  the-  meaning  of  which  is  well-known,  and  which  has  a  definite  sense 
at  common  law,  the  word  will  be  restricted  to  that  sense. 


LAW  FORBIDDING  ADVERTISING  NOT  TOO  VAGUE 

State   Medical  Board   of  Arkansas   Medical   Society   v.   McCrary,   95  Ark.   511; 

130  S.  W.  5U 
1910 

McCrary  was  notified  to  appear  before  the  State  Board  of  Arkansas  Medical 
Society  and  show  cause  why  his  certificate  to  practice  medicine  should  not  be 
revoked  under  subdivision  d  of  section  8  of  Act  219,  approved  May  6,  1909.  He 
filed  a  complaint  against  the  board  to  enjoin  them  from  acting  on  the  complaint 
filed  against  him.  The  board  demurred  to  the  complaint.  The  court  overruled 
the  demurrer  on  the  ground  that  subdivision  d,  which  authorized  the  board  to 
revoke  the  license  of  a  physician,  if  he  "publicly  advertise  special  ability  to  treat 
or  cure  chronic  and  incurable  diseases  is  too  indefinite  and  uncertain  for  enforce- 
ment." The  board  electing  to  stand  on  its  demurrer,  and  refusing  to  further 
plead,  a  decree  was  entered  enjoining  it  and  the  members  thereof  from  in  any 
way  interfering  with  the  right  of  the  plaintiff  to  practice  medicine,  because  of 
the  advertisement  charged  in  the  complaint  made  against  him.  To  reverse  the 
decree  this  appeal  is  prosecuted. 

The  constitutionality  of  the  above-quoted  statute  is  attacked  by  appellee. 
He  contends  that  his  license  to  practice  medicine  is  a  property  right,  the  revoca- 
tion of  which  is  an  exercise  of  judicial  power,  which  cannot  be  vested  in  any 
administrative  board,  but  only  in  the  courts;  and  that  to  assume  to  invest  this 
power  in  the  board  is  to  deprive  him  of  his  property  without  due  process  of  law, 
in  violation  of  section  8  of  article  2  of  our  constitution.  The  court  cites  many 
decisions  to  show  that  the  position  is  not  well  taken. 

It  is  also  contended  that  section  4  of  the  section  of  the  statute  in  question 
is  too  vague  and  indefinite  to  be  upheld  and  enforced.     After  citing  authorities, 


253 

the  court  decides  that  the  language  of  subdivision  d  in  question  is  not  too  uncer- 
tain and  indefinite  to  be  upheld  and  enforced.  A  statute  forbidding  a  physician 
to  advertise  for  patients  in  newspapers  would  be  upheld;  and  by  analogy,  a 
statute  forbidding  them  to  advertise  their  ability  to  treat  and  cure  certain  named 

diseases  would  be  a  valid  exercise  of  the  police  power. 

While  the  particular  disease  against  which  the  prohibition  of  the  statute  is 
directed  is  not  named,  yet  the  words  "chronic  and  incurable,"  when  used  with 
reference  to  diseases  of  the  body,  are  not  variable,  but  have  a  settled  and  gen- 
erally accepted  meaning.  The  word  "chronic"  is  the  antithesis  of  "acute."  and 
a  chronic  and  incurable  disease  is  generally  understood  to  be  one  of  long  stand 
ing,  deep-rooted,  obstinate,  persistent,  and  unyielding  to  treatment.  On  this 
account  those  afflicted  with  such  diseases  become  discouraged,  and  to  an  extent 
desperate,  and  more  easily  become  the  prey  of  conscienceless  and  unscrupulous 
practitioners  in  the  medical  profession.  Such  diseases  are  specifically  named  and 
discussed  in  standard  medical  works,  and  are  known  to  all  physicians,  who  may 
possess  a  sufficient  knowledge  of  their  profession  to  practice  the  art  of  healing, 
as  chronic  and  incurable  diseases.  For  the  board  to  consult  these  standard  med- 
ical works  would  not  he  to  use  them  as  evidence  as  contended  by  appellee,  but 
such  act  would  be  rather  done  as  an  aid  to  the  memory  and  understanding  of 
the  members  of  the  board.'  The  decree  will  be  reversed,  and  the  complaint  dis- 
missed for  want  of  equity. 

LEGISLATURE  MAY   DESIGNATE  SOCIETIES   TO   APPOINT  BOARDS 

Ex  parte  Frazer,  5)  G'al.  9S( 

1880 

The  Supreme  Court  of  California  assumes  that  the  state,  in  the  exercise  of 
the  police  power,  may  provide  for  boards  authorized  to  examine  persons  seeking 
to  be  admitted  to  practice  medicine,  to  be  appointed  by  any  citizen  or  citizens 
named.  The  second  section  of  the  act  of  April  3,  1876,  "to  regulate  the  practice 
of  medicine,"  as  amended  in  1878,  conferred  the  exclusive  power  to  appoint 
boards  of  examiners  on  three  medical  societies.  The  court  does  not  consider 
that,  by  conferring  the  authority  and  imposing  the  duty  of  appointing  boards 
of  examiners  on  the  three  societies  named  in  the  act,  and  prohibiting  the  issuing 
of  certificates  by  others  than  the  appointees  of  such  societies,  the  legislature 
exceeded  the  limitation  of  its  powers  contained  in  the  provision  in  the  state  con- 
stitution that  "corporations  may  be  formed  under  general  laws,  but  shall  not  be 
created  by  special  act."  It  was  deemed  unnecessary  to  express  any  opinion  as 
to  the  other  portions  of  the  law,  since,  even  if  it  be  assumed  that  such  other 
portions  were  unconstitutional,  the  remaining  portions  Avere  stated  independently, 
and  of  themselves  contained  a  complete  scheme  for  the  examination  of  diplomas 
and  applicants,  and  for  the  prohibition  of  certificates  by  others  than  those  empow- 
ered by  the  act  to  issue  them. 


WHAT   IS   EMERGENCY   TREATMENT? 

People  v.  Lee  Wah,  11  Cal.  80;  11  Pac.  851 

1886 

The  defendant  was  accused  of  practicing  medicine  without  having  procured  a 
certificate,  as  provided  by  the  act  of  April  3,  1876,  and  the  act  of  April  1,  1878. 
The  uncontradicted  facts  are  that  the  defendant  had  a  place  of  business  in  San 
Jose,  at  which  he  kept  herbs.  Two  women  went  to  his  place  of  business,  stated 
to  him  their  ailments,  and  asked  if  he  could  give  them  herbs  to  effect  a  cure. 
He  said  he  could.  He  prepared  herbs  of  his  own  selection,  and  delivered  them  to 
the  women,  who  took  the  herbs  to  their  homes,  and  made  and  drank  teas.  They 
paid  him  at  times  $10  per  week;  at  other  times  $6  per  week.  The  payments 
were  made  regularly,  without  reference  to  the  kind  or  amount  of  herbs,  and  con- 
tinued several  weeks — in  one  case  ten  weeks.  The  women  testified  that  they 
did  not  pay  him  for  medical  services,  but  for  the  herbs  only.  The  jury  must 
have  been  of  opinion  that  both  the  herbs  and  services  were  paid  for. 


254 

The  court  instructed  the  jury  that  if  they  believed  the  services  testified  to 
were  rendered  gratuitously,  and  in  an  emergency,  a  verdict  of  not  guilty  should 
be  rendered.  The  court  then  proceeded  to  define  "an  emergency"  as  a  case  in 
which  the  ordinary  medical  practitioners  of  the  schools  provided  for  by  the 
statute,  who  are  provided  with  the  proper  diplomas,  and  have  submitted  them- 
selves to  the  proper  examination,  are  not  readily  obtainable.  This  is  an  emer- 
gency, as  where  the  exigency  is  of  so  pressing  a  character  that  some  kind  of 
action  must  be  taken  before  such  parties  can  be  found  or  procured.  The  jurors 
will  readily  understand  that  if  a  person  has  received  an  injury  in  a  remote, 
isolated  part  of  the  country,  in  which  some  person  not  a  regular  practitioner 
should  be  called  upon  to  render  immediate  assistance,  and  should  render  it,  as 
in  the  case  of  a  severe  injury,  a  case  of  obstetrics,  or  the  like,  such  instance 
would  be  an  emergency  which  would  justify  a  party  in  rendering  assistance,  and 
that  humanity  and  decency  would  require  he  should  not  be  liable  in  a  criminal 
prosecution  for  so  doing.  If,  however,  a  party  is  satisfied  that  another  school 
of  physicians,  or  another  individual,  can  render  him  more  efficient  aid — more 
beneficial  services  than  others — and  he  therefore  seeks  his  aid,  that  is  not  such 
an  emergency  as  the  statute  contemplates."  The  appellant  urged  that  these 
instructions  are  contradictory.  The  court  sees  no  contradiction.  Judgment  and 
order  affirmed. 


DECISIONS  OF  BOAED  REGARDING  GOOD  STANDING  OF  SCHOOLS  NOT 
SUBJECT  TO  REVIEW   OF   COURTS 

Van  Vleck  v.  Board  of  Dental  Examiners,  48  Pac.  223 

1897 

This  is  a  mandamus  proceeding  against  the  board  of  dental  examiners  to 
compel  the  issuance  to  the  petitioner  of  a  certificate  entitling  him  to  practice 
dentistry  under  the  dental  act  of  1885.  The  lower  court  granted  the  writ  and 
the  board  appealed.  The  defendant  board  demurred  to  the  petition  on  the  ground 
that  the  petition  did  not  state  facts  entitling  the  petitioner  to  the  relief  sought. 
The  demurrer  was  overruled  and  this  ruling  was  the  only  question  presented  to 
the  Supreme  Court.  The  petition  states  that  John  D.  Van  Vleck  is  the  holder 
of  a  diploma  issued  to  him  by  the  American  College  of  Dental  Surgery  of  Chi- 
cago, which  college  was,  at  the  time  of  application  for  a  license,  a  reputable 
college  and  that  the  petitioner  had  complied  with  the  law  in  every  respect.  Sec- 
tion 5  of  the  dental  act  of  1889  authorizes  the  board  "to  endorse  as  satisfactory 
diplomas  from  any  reputable  dental  college  when  satisfied  of  the  character  of 
such  institution."  The  board  contends  that  its  functions  under  the  statute  are 
judicial  or  quasi-judicial,  involving  the  exercise  of  discretionary  power,  the  deter- 
mination of  facts  from  evidence,  and  that  the  determination  of  such  facts  is 
exclusively  and  finally  vested  in  the  board  and  that,  while  a  mandamus  will  lie 
to  require  the  board  to  act,  when  the  board  has  reached  a  particular  conclusion 
or  where  it  has  acted  and  reached  one  result,  it  cannot  be  coerced  by  mandamus 
to  act  differently.  Respondent  (Van  Vleck)  contends  that  the  power  vested  in 
the  board  is  ministerial  or  clerical  and  that,  while  the  board  has  discretionary 
powers  to  pass  on  the  facts  on  which  its  action  is  to  be  based,  its  determination 
of  these  facts  is  not  final  but  is  subject  to  review  in  the  courts.  The  court  is 
unable  to  agree  with  this  construction  of  the  act.  The  object  of  the  legislature 
in  passing  the  act  of  1885  was  to  protect  the  public  against  incompetent  and 
unqualified  dental  practitioners.  It  provides  for  a  board  with  power  to  examine 
and  license  those  who  have  not  graduated  elsewhere  and  to  investigate  and  pass 
on  the  reputability  of  dental  schools  and  colleges.  The  powers  thus  conferred 
are  broad  and  comprehensive  and,  in  some  respects  at  least,  must  in  their  nature 
be  final.  If  the  statute  required  that  the  applicant  make  a  prescribed  showing 
in  a  particular  manner  and  that  thereupon  the  board  should  endorse  his  certifi- 
cate, then  the  act  might  with  reason  be  held  to  be  more  ministerial  than  judicial,, 
but  the  action  of  the  board  does  not  depend  upon  some  specified  piece  of  evidence 
fixed  by  the  statute  but  upon  such  facts  as  will  satisfy  the  board.     The  whole 


255 


question  as  to  the  facts  is  committed  to  the  hoard's  discretionary  judgment  and 
its  determination  in  such  a  case  is  conclusive  and  not  subject  to  the  mandatory 
control  of  the  courts.  There  is  consequently  no  {.'round  for  mandamus  and  the 
judgment  and  order  of  the  lower  court  must  be  reversed. 


PROOF  OF  LICENSE  RESTS  IN  DEFENDANT 

People  v.  Boo  Doo  Bong,  122  Cal.  606;  55  Pac.  J/02 

1898 

Boo  Doo  Hong  was  convicted  of  practicing  medicine  without  a  license,  and 
appealed.  He  first  demurred  to  the  information,  and,  his  demurrer  being  over- 
ruled, pleaded  not  guilty,  was  tried  and  found  guilty.  The  court  says  that  the 
demurrer  was  properly  overruled.  The  facts  stated  in  the  information  were 
sufficient  to  constitute  a  public  offense,  and  it  was  not  necessary  to  allege  the 
existence  of  the  medical  societies  referred  to.  Uncontradicted  evidence  was  intro- 
duced showing  that,  for  several  months  prior  to  the  filing  of  the  information, 
defendant  had  been  practicing  medicine.  No  evidence  was  introduced  on  either 
side  showing,  or  tending  to  show,  that  defendant  had  or  had  not  a  certificate  to 
so  practice,  as  required  by  law.  The  court  instructed  the  jury  that  the  burden 
was  upon  the  defendant  to  establish  that  he  had  a  certificate  to  practice  med- 
icine as  provided  by  law,  and,  if  he  failed  to  prove  that  he  had  such  certificate, 
then  it  must  be  taken  as  true  that  he  had  not  procured  a  certificate  to  so  prac- 
tice medicine. 

It  is  contended  for  appellant  that  this  instruction  was  erroneous  and  mis- 
leading, that  the  verdict  was  not  justified  by  the  evidence,  and  that  it  devolved 
upon  the  people  to  prove  that  the  defendant  had  no  license,  and,  having  entirely 
failed  to  offer  any  such  proof,  he  ought  not  to  have  been  convicted,  and  his 
motion  for  new  trial  should  have  been  granted.  The  general  rule  is  undoubtedly 
as  above  stated,  but  there  is  a  well-recognized  exception  to  the  rule,  where  there 
is  a  negative  averment  of  a  fact  which  is  peculiarly  within  the  knowledge  of  the 
defendant.  The  court  concludes  that  the  trial  court  did  not  err  in  giving  the 
instruction  complained  of,  and  that  the  verdict  was  justified  by  the  evidence. 
Judgment  affirmed. 


VALIDITY  OF  MEDICAL  PRACTICE   ACT— ASSOCIATION   OF  AMERICAN 
MEDICAL   COLLEGES   STANDARD 

Ex  parte  Gerino,  11,3  Cal.  412;  77  Pac.  166;  66  L.  R.  A.  249 

1904 

The  act  of  Feb.  27,  1901,  for  the  regulation  of  the  practice  of  medicine  and 
surgery,  provides,  with  respect  to  the  membership  of  the  board  of  examiners, 
that  "five  members  thereof  shall  be  elected  by  the  Medical  Society  of  the  State 
of  California,  two  members  thereof  by  the  California  State  Homeopathic  Medical 
Society,  and  two  members  thereof  by  the  Eclectic  Medical  Society  of  the 
State  of  California."  The  power  of  the  state  to  constitute  such  a 
board,  and  to  impose  restrictions  on  the  right  to  practice  medicine,  to  be  enforced 
by  the  board,  rests  entirely  on  the  theory  that  such  regulations  are  for  the  gen- 
eral welfare,  and  specifically  to  protect  people  from  the  arts  of  quacks  and  pre- 
tenders and  from  the  mistakes  of  incapable  practitioners.  The  societies  named, 
by  receiving  this  power  of  appointment,  are  constituted  agencies  of  the  state  to 
perform  a  part  of  the  duty  pertaining  to  the  sovereign  power  of  the  state,  and 
they  are  not,  in  that  respect,  the  recipients  of  private  rights  or  privileges.  It 
may  be  true  that  in  making  these  appointments  each  medical  society  will  choose 
persons  who  believe  in  the  school  of  medicine  of  which  its  members  are  composed. 
This,  however,  does  not  render  the  law  unconstitutional.  The  board,  when  ap- 
pointed, must  act  equally  for  the  benefit  of  all  applicants,  and  impartially  with 
respect  to  each,  regardless  of  the  school  of  medicine  to  which  they  belong.  More- 
over, even  if  the  method  provided  in  the  law  for  the  appointment  of  the  mem- 
bers was  invalid,  the  other  provisions  of  the  law  would  stand  unaffected.     There 


256 

would  then  be  a  legal  office  established,  without  any  specific  provision  tor  the 
appointment  of  any  person  to  fill  it,  and  the  vacancy  thus  existing  could  be 
filled  by  appointment  of  the  governor.  But,  as  it  would  be  a  legal  office,  it  could 
be  filled  by  a  de  facto  officer,  and  in  that  case  the  validity  of  his  appointment 
and  his  right  to  hold  the  office  could  not  be  questioned  in  a  proceeding  in  habeas 
corpus.  Nor  does  the  court  think  the  act  rendered  unconstitutional  by  the  pro- 
vision that  the  applicant  for  examination  must  produce  a  diploma  issued  by  some 
legally  chartered  medical  school,  the  requirements  of  which  "shall  have  been,  at 
the  time  of  granting  of  such  diploma,  in  no  particular  less  than  those  prescribed 
by  the  Association  of  American  Medical  Colleges  for  that  year."  It  says  that 
the  law  on  this  point  is  not  to  be  construed  so  as  to  require  these  colleges  to  have 
the  identical  course  of  study  and  other  requirements  prescribed  by  the  associa- 
tion. The  standard  of  scholarship  required  is  that  it  shall  be  equal  to  the  stand- 
ard required  by  the  association.  It  need  not  be  the  same  course  of  study,  nor 
the  study  of  the  same  text-books,  nor  the  attendance  for  the  same  length  of  time, 
but  it  must  be  such  as  requires  of  the  student  a  degree  of  proficiency  in  the 
studies  necessary  to  prepare  him  for  practice  equal  to  that  which  would  ordi- 
narily be  produced  by  the  requirements  prescribed  by  the  association.  Whether 
or  not  the  Association  of  American  Medical  Colleges  is  composed  of  those  only 
which  teach  the  allopathic  branch  of  that  profession,  the  court  cannot  say;  but, 
admitting  it  to  be  so,  it  cannot  say  that  there  is  in  this  provision  of  the  law, 
thus  understood,  an  arbitrary  or  unjust  discrimination  against  other  schools. 
Surely  they  would  not  claim  the  right  to  have  their  adherents  admitted  to  prac- 
tice the  profession  on  a  less  degree  of  proficiency  in  the  preparatory  studies  than 
is  required  of  those  in  the  regular  school.  It  being  proper  for  the  legislature 
to  demand  some  standard  of  efficiency,  the  court  thinks  it  equally  within  its 
power  to  declare  that  it  shall  be  the  same  as  that  prescribed  from  time  to  time 
by  an  association  composed  of  colleges  devoted  to  the  work  of  preparing  persons 
for  the  profession.  It  says  that  evidently  the  standard  of  proficiency  in  scholar- 
ship as  a  preparation,  and  the  particular  studies  necessary  to  secure  a  fair  prep- 
aration, must  change  as  the  discoveries  in  natural  science  open  new  fields  of 
investigation,  and  suggest  or  reveal  new  curative  agencies.  The  legislature  can- 
not successfully  prescribe  in  advance  a  standard  to  meet  these  new  and  changing 
conditions.  Lastly,  the  court  says  that  it  was  not  necessary  to  consider  whether 
or  not  the  provision  for  reciprocity  is  constitutional.  Conceding,  but  not  decid- 
ing, that  such  provision  is  void,  it  did  not  affect  the  other  provisions  of  the  act 
under  which  the  petitioner  was  held  in  custody  on  the  charge  of  practicing  med- 
icine without  a  certificate  from  the  state  board  of  medical  examiners. 


VALIDITY,  OF   PEACTICE    ACT    EXEMPTING   THOSE    IN    PRACTICE    AT 
TIME    OF   PASSAGE    OF   THE   LAW 

Ex  parte  Whitley,  1U  Gal.  167;  77  Pac.  879 

1904 

The  Supreme  Court  of  California  says,  with  reference  to  the  constitutionality 
of  a  statute  exempting  from  its  requirements  those  practicing  at  the  time  of  its 
passage,  that  in  some  instances  the  question  arose  under  acts  regulating  the  prac- 
tice of  medicine,  and  in  others,  as  here,  regulating  the  practice  of  dentistry;  but 
the  same  reasoning  would  apply  and  the  same  constitutional  principles  govern 
as  to  the  validity  of  provisions  of  a  dental  as  of  a  medical  act,  because  the  pro- 
fession of  dentistry  is  but  a  special  branch  of  the  medical  profession,  and  the 
power  of  the  state  to  regulate  both  in  the  interests  of  the  public  is  equally  clear. 
Such  legislation  has  been  uniformly  upheld.  It  is  neither  special  nor  class,  and 
no  privileges  or  immunities  are  conferred  thereby  on  one  class  to  the  detriment 
of  another.  Nor  does  the  court  find  any  merit  in  the  contention  that  the  statute 
arbitrarily  creates  three  classes  of  persons  who  may  practice  dentistry  in  the 
state  after  eiamination:  1,  Graduates  of  reputable  dental  colleges;  2,  graduates 
of  high  schools  or  similar  institutions  of  learning  requiring  a  three  years'  course 
of  study,  who  have  served  an  apprenticeship  of  four  years  with  licensed  prac- 
titioners within  the  state;   3,  dentists  from  other  states  who  have  been  licensed 


257 

practitioners  for  five  years.  The  court  says  that  it  is  entirely  within  the  power 
of  the  legislature  to  fix  any  reasonable  standard  for  determining  the  competency 

of  an  applicant  for  admission  to  the  practice  of  dentistry,  ft  might,  as  under 
the  act  regulating  the  practice  of  medicine  and  surgery  in  California,  where  only 
those  who  are  graduates  from  a  medical  college  can  be  admitted  to  practice,  have 
also  made  a  similar  single  standard,  limiting  admission  to  practice  dentistry  to 
those  alone  who  had  graduated  from  some  dental  college.  As  this  might  have 
been  the  sole  condition  on  which  an  applicant  could  be  examined,  it  cannot  be 
said  that  legislation  which  enlarges  the  right  and  extends  it  to  others  is  dis- 
criminatory. The  law  no  doubt  is  discriminatory,  but  not  in  any  constitutional 
sense.  It  does  not  discriminate  between  classes.  The  discrimination  goes  to  the 
degree  of  learning  and  skill  which  all  applicants  for  examination  must  possess. 
It  is  a  discrimination  which,  in  the  interest  of  the  public  welfare,  it  is  the  duty 
of  the  legislature  to  make,  and  concerning  the  necessity  for  which,  and  its  nature 
and  extent — whether  an  examination  and  right  to  practice  shall  depend  on  the 
possession  by  the  applicant  of  a  diploma  of  a  dental  college  only,  or  be  extended 
to  others  and  how  far — depends  primarily  on  the  judgment  of  the  legislature 
which,  when  reasonably  exercised,  the  courts  cannot  control.  The  court  says  that 
.the  power  to  determine  whether  a  college  was  reputable  had  to  be  lodged  some- 
where, and  it  was  properly  committed  to  the  only  body  which  could  fairly  and 
intelligently  determine,  not  only  the  qualifications  of  the  applicant,  but  on  the 
reputation  of  the  college  whose  diploma  he  claimed  to  possess — the  state  board 
of  dental   examiners. 


REQUISITES  TO  LAW  AUTHORIZING  REVOCATION  OF  LICENSE 

Heicitt   v.   Board   of   Medical  Examiners,  1J/S   Cal.   590;  84   Pac.  39;  113  Am. 

St.  Rep.  315 

1906 

Legislation  of  the  character  embraced  within  the  general  scope  of  the  act  of 
1901  for  the  regulation  of  the  practice  of  medicine  and  surgery  and  for  the 
appointment  of  a  board  of  medical  examiners  in  the  matter  of  such  regulation, 
in  so  far  as  it  provides  for  the  revocation  of  the  certificate  of  a  physician,  is 
sustained  on  the  ground  that  the  legislature  has  authority  under  its  general 
police  power  to  provide  all  reasonable  regulations  that  may  be  necessary  affecting 
the  public  health,  safety  or  morals,  and  with  this  object  in  view  to  provide  for 
the  dismissal  from  the  medical  profession  of  all  persons  whose  principles,  prac- 
tices and  character  render  them  unlit  to  remain  in  it.  As  the  duty  of  determin- 
ing whether  such  professional  or  moral  unfitness  exists  must  necessarily  be 
vested  in  somebody  other  than  the  legislature,  it  is  usually  committed  by  appro- 
priate legislation  to  boards  composed  of  men  learned  in  their  profession.  Such 
power,  however,  to  revoke  the  license  of  a  practitioner  when  conferred  on  a  board 
must  be  under  provisions  of  law  which  are  reasonable,  must  apply  to  matters 
of  conduct  on  the  part  of  the  practitioner  which  affect  the  health,  morals  or 
safety  of  the  community,  and  the  acts  or  conduct  which  shall  render  him  liable 
to  the  penalty  of  forfeiture  of  his  right  to  practice  his  profession  must  be  declared 
with  such  certainty  and  definiteness  in  the  act  that  he  may  know  exactly  what 
they  are.  The  right  to  practice  medicine  is,  like  the  right  to  practice  any  other 
profession,  a  valuable  property  right,  in  which,  under  the  constitution  and  laws 
of  the  state,  one  is  entitled  to  be  protected  and  secured.  And  so  the  court  holds 
void  the  provision  in  the  act  of  1901  authorizing  the  board  of  medical  examiners 
to  revoke  the  certificate  of  a  physician  for  "grossly  improbable  statements"  in  an 
advertisement  of  medical  business.  It  says  that  the  right  which  a  person  pos- 
sesses under  the  constitution  and  laws  to  practice  his  profession  as  a  physician 
and  surgeon  cannot  be  made  to  depend  on  a  provision  of  a  statute  as  vague, 
uncertain  and  indefinite  as  this  one.  If  a  physician's  license  is  to  be  revoked  for 
"grossly  improbable  statements";  if  he  is  to  be  thereby  deprived  of  his  means 
of  livelihood,  of  his  right  to  practice  a  profession  which  it  has  taken  him  years 
of  study  and  a  large  expenditure  of  money  to  qualify  himself  for,  on  the  ground 
that  he  has  made  "grossly  improbable  statements"  in  advertising  his  medical 
business — it  is  requisite  that  the  statute  authorizing  such  revocation  define  what 


258 

shall  constitute  such  statements  so  that  the  physician  may  know  in  advance  the 
penalty  he  incurs  in  making  them.  It  is  an  easy  matter  for  the  legislature  to 
declare  what  statements  in  the  advertisement  of  medical  business  shall  be  deemed 
"grossly  improbable,"  and  it  must  do  so,  and  not  leave  it  to  a  board  of  medical 
examiners  after  the  publication  is  made  to  determine,  in  its  judgment,  whether 
the  statements  were  or  were  not  "grossly  improbable,"  and  according  to  its  par- 
ticular view  of  the  matter  revoke  or  refuse  to  revoke  the  license.  The  right  to 
practice  medicine  cannot  be  made  to  depend  on  such  a  vague,  uncertain  and 
indefinite  provision. 


REQUIREMENTS   OF   MEDICAL   PRACTICE  ACT 
Arwine  v.  Board  of  Medical  Examiners  of  California,  151  Cal.  499;  91  Pac.  319 

1907 

Arwine  sought  to  compel  the  board  to  give  him  a  license.  The  Supreme  Court 
held  that  the  medical  practice  act  required  that,  in  order  to  procure  a  certificate 
to  practice  medicine  and  surgery  in  California,  the  plaintiff  must  produce  before 
the  board  of  medical  examiners,  in  addition  to  satisfactory  testimony  of  good 
moral  character,  a  "diploma  issued  by  some  legally  chartered  medical  school, 
the  requirements  of  which  medical  school  shall  have  been,  at  the  time  of  grant- 
ing such  diploma,  in  no  particular  less  than  those  prescribed  by  the  Association 
of  American  Medical  Colleges  for  that  year,  or  satisfactory  evidence  of  having 
possessed  such  a  diploma,  or  a  license  from  some  legally  constituted  institution 
which  grants  medical  and  surgical  licenses  only  on  actual  examination,  or  satis- 
factory evidence  of  having  possessed  such  a  license." 

In  the  matter  of  credentials,  the  only  documents  alleged  to  have  been  pro- 
duced to  the  board  of  medical  examiners  were,  first,  a  diploma  issued  to  the  plain- 
tiff from  the  medical  department  of  the  University  of  the  South,  Sewanee,  Tenn., 
which  was  alleged  to  be  a  legally  chartered  medical  school,  the  requirements  of 
which  at  the  time  of  granting  the  diploma  were  in  no  material  particular  less 
than  those  prescribed  by  the  Association  of  American  Medical  Colleges  for  that 
year;  and,  second,  certificates  or  licenses  to  practice  medicine  and  surgery  granted 
by  the  boards  of  examiners  of  the  District  of  Columbia  and  the  State  of  Indiana. 
As  to  the  latter,  it  was  not  alleged  nor  did  it  otherwise  appear  that  either  of 
such  boards  granted  licenses  "only  on  actual  examination,"  or  that  the  legal 
requirements  of  either  of  said  boards  were  at  the  time  it  issued  the  certificate 
in  no  degree  or  particular  less  than  those  of  California  at  the  time  when  such 
certificates  were  presented  for  registration.  So  far  as  the  record  showed,  these 
certificates  were,  therefore,  insufficient  under  the  requirements  of  the  act,  and 
could  not  authorize  the  granting  of  a  license  by  the  defendants. 

Concerning  the  diploma,  the  court  says  that,  while  the  allegations  of  the 
plaintiff  indicated  that  the  requirements  of  the  school  were  in  no  particular  less 
than  those  prescribed  by  the  Association  of  American  Medical  Colleges  for  that 
year,  that  allegation  was  denied  by  the  defendants  in  their  answer.  The  issue 
of  fact  thus  made  was  not  determined  by  the  District  Court  of  Appeals;  that 
court  saying  in  its  opinion  that  on  the  evidence  before  it  that  question  of  fact 
could  not  be  determined.  That  opinion  did  not  state  any  evidence  which  enabled 
the  Supreme  Court  to  determine  that  question,  and  no  evidence  was  introduced 
before  the  Supreme  Court  on  the  issue.  The  burden  is,  of  course,  on  the  plain- 
tiff in  a  proceeding  of  this  character  to  prove  such  material  allegations  in  behalf 
of  his  claim  as  are  denied  by  the  answer.  The  finding  on  this  issue  must,  there- 
fore, be  against  the  plaintiff,  and  it  followed,  that,  on  the  case  before  the  Supreme 
Court,  the  diploma  must  be  held  insufficient  under  the  requirements  of  the  act. 

It  was  suggested  that  that  provision  of  the  act,  which  makes  the  rule  of 
guidance  the  standard  set  by  the  Association  of  American  Medical  Colleges,  is 
void,  because  the  effect  thereof  is  to  delegate  to  this  association  a  power  which, 
it  was  claimed,  can  be  exercised  only  by  the  legislature  itself.  But  the  court 
holds  to  the  contrary. 

It  was  further  urged  that  the  act  should  be  construed  as  rendering  an  appli- 
cant entitled  to  a  certificate  on  his  passing  a  satisfactory  examination  even 
though  he  fails  to  produce  the  required  diploma  or  license;  in  other  words,  that 


259 

the  act  entitles  him  to  a  certificate  either  on  the  production  of  a  proper  diploma 
or  license,  or  on  passing  a  satisfactory  examination.  But  clearly  the  act  will 
hear  no  such  construction.  The  language  of  the  provision  ;is  to  production  of 
diploma  or  license  is  such  as  to  necessarily  make  it  applicable  to  every  case,  and 
no  exception  thereto  is  declared  in  any  other  part  of  the  act.  A  diploma  or 
license  coming  up  to  the  requirements  of  the  act  is  essential  in  every  case  to 
the  right  to  a  certificate,  however  well  qualified  the  applicant  may  he'  in  other 
respects. 

Wherefore,  the  court  is  forced  to  the  conclusion  that,  notwithstanding  the 
long  experience  of  the  plaintiff  as  a  practicing  physician  and  surgeon,  extending 
over  a  period  of  more  than  ten  years,  and  notwithstanding  that  he  may  have 
successfully  passed  the  examination  as  to  his  qualifications  to  practice,  it  must 
be  here  held  that  he  failed  to  comply  with  the  provisions  of  the  act  in  the  matter 
of  producing  a  proper  diploma  or  license,  and,  therefore,  that  he  must  fail  in 
this  proceeding,  which  was  brought  to  compel  the  board  of  medical  examiners  to 
issue  to  him  a  certificate  to  practice  medicine  and  surgery. 


WHAT   CONSTITUTES   THE   PRACTICE   OF   MEDICINE 

Ex  parte  Greenall,  153  Cal.  767;  96  Pac.  80ft 

1908 

The  Supreme  Court  of  California  construes  the  act  of  that  state  of  March  14, 
1907,  with  reference  to  what  constitutes  the  "practice"  of  medicine,  etc.,  under  it. 
The  act  is  entitled  "An  act  for  the  regulation  of  the  practice  of  medicine  and 
surgery,  osteopathy,  and  other  systems  or  modes  of  treating  the  sick  or  afflicted, 
in  the  state  of  California,  and  for  the  appointment  of  a  board  of  medical  exam- 
iners in  the  matter  of  said  regulation." 

The  court  says  that  the  1907  act  provides:  "Any  person  who  shall  practice 
or  attempt  to  practice  or  advertise  or  hold  himself  out  as  practicing  medicine 
or  surgery,  osteopathy,  or  any  other  system  or  mode  of  treating  the  sick  or 
afflicted,  in  this  state,  without  having,  at  the  time  of  so  doing,  a  valid,  unrevoked 
certificate,  as  provided  in  this  act,  shall  be  guilty  of  a  misdemeanor."  The  act 
nowhere  states,  as  did  the  act  of  1901,  which  was  limited  to  a  regulation  of 
the  practice  of  "medicine  and  surgery,"  what  is  meant  by  the  term  "practice" 
as  used  therein. 

The  act  of  1901,  after  providing  that  "any  person  practicing  medicine  or  sur- 
gery" without  a  license  should  be  deemed  guilty  of  a  misdemeanor,  provided, 
in  section  16:  "The  following  persons  shall  be  deemed  as  practicing  medicine  or 
surgery  within  the  meaning  of  this  act:  1.  Those  who  profess  to  be,  or  hold 
themselves  out  as  being,  engaged  as  doctors,  physicians  or  surgeons  in  the  treat- 
ment of  disease,  injury  or  deformity  of  human  beings.  2.  Those  who,  for  pecu- 
niary or  valuable  consideration,  shall  prescribe  medicine,  magnetism  or  electricity 
in  the  treatment  of  disease,  injury  or  deformity  of  human  beings.  3.  Those  who, 
for  pecuniary  or  valuable  consideration,  shall  employ  surgical  or  medical  means 
or  appliances  for  the  treatment  of  disease,  injury  or  deformity  of  human  beings 
.  .  .  4.  Those  who,  for  a  pecuniary  or  valuable  consideration  prescribe  or  use 
any  drug  or  medicine,  appliance  or  medical  or  surgical  treatment,  or  perform 
any  operation  for  the  relief  or  cure  of  any  bodily  injury  or  disease."  There  was 
thus  given  by  that  act  to  the  term  "practicing  medicine  or  surgery"  a  definite 
meaning,  corresponding  substantially  with  the  popular  understanding  of  the 
term.  When  we  say  that  one  is  practicing  medicine  or  surgery  or  osteopathy, 
we  ordinarily  mean  that  he  is  engaged  in  that  line  of  work  as  a  business,  hold- 
ing himself  out  as  being  so  engaged,  or  for  a  consideration  treating  those  who 
will  accept  his  professional  services,  and  we  would  not  apply  the  term  to  one 
who  incidentally  and  gratuitously  suggests  or  puts  into  operation  some  method 
of  treatment  in  the  case  of  one  who  is  "sick  or  afflicted." 

The  court  is  satisfied  that  the  term  "practice"  in  the  act  of  1907  should  not 
be  given  any  broader  meaning  than  it  had  in  the  act  of  1901.  One  who  within 
this  meaning  "practices"  medicine  or  surgery  or  osteopathy,  or  any  other  recog- 
nized mode  of  treatment  of  the  sick,  without  a  certificate,  violates  the  provisions 


260 

of  the  act.  It  might  be  sufficient  in  the  complaint  to  charge  simply  that  one 
had  practiced  medicine,  or  osteopathy,  or  chiropractics,  without  such  certificate. 
In  such  an  allegation,  the  word  "practice"  would,  in  view  of  the  accepted  mean- 
ing it  is  given  when  used  in  such  connection,  reasonably  bear  no  other  construc- 
tion than  the  one  the  court  has  described,  and  so  construed  would  show  an  offense. 

But  the  complaint  in  the  case  before  the  court  contained  no  such  allegation. 
The  allegation  was  simply  that  the  defendant  did  wilfully  and  unlawfully  "treat 
the  sick  or  afflicted"  without  having  at  the  time  a  valid  unrevoked  certificate  as 
required  by  the  act,  the  words  "by  practicing  the  system  or  mode  known  as 
'chiropractic,'  "  being  simply  descriptive  of,  the  method  by  which  he  treated  the 
sick.  As  thus  used,  the  word  "practicing"  could  not  reasonably  be  given  the 
meaning  the  court  has  described,  but  was  synonymous  with  the  word  "using." 

The  court  was  informed  in  the  briefs  that  the  word  "chiropractic"  meant  a 
treatment  somewhat  analogous  to  that  of  osteopathy,  the  removal  of  the  cause 
of  disease  without  the  use  of  drugs  or  any  other  means  except  the  adjustment 
of  the  vertebrae  of  the  spine  by  manipulating  them  with  the  hand.  If  this  was 
correct,  the  complaint  in  this  case  simply  charged  that  the  defendant  used  this 
method  in  "treating"  the  sick  or  afflicted,  without  having  any  certificate  under 
the  act,  and  the  allegations  of  the  complaint  would  be  fully  sustained  by  proof 
that  he  had  incidentally  and  gratuitously  attempted  to  administer  aid  to  one 
who  was  sick  or  afflicted  by  the  use  of  this  method.  It  might  as  well  be  con- 
tended that  a  complaint  simply  charging  that  one  treated  a  sick  person  by  admin- 
istering medicine,  without  having  a  certificate,  would  state  a  public  offense  under 
this  act.  To  bring  a  person  within  the  provisions  of  the  act,  it  must  appear 
that  he  practices,  or  attempts  to  practice,  medicine,  etc.,  as  a  business  or  call- 
ing, or  advertises  or  holds  himself  out  as  so  doing,  and,  as  the  court  has  said 
above,  an  allegation  that  one  "practiced  medicine"  or  surgery,  etc.,  might  show 
this. 


MEDICAL   PRACTICE   ACT   NOT   INVALIDATED    BY   PROVISION   AS    TO 

PRAYER 

Ex  parte  Bohannon,  Ut  Gal.  App.  321;  111  Pac.  1039 

■       1910 

The  Court  of  Appeal,  First  District,  holds  that  the  medical  practice  act  of 
that  state  of  1907  is  not  rendered  unconstitutional  by  the  proviso  that  nothing 
therein  shall  be  held  to  apply  or  to  regulate  any  kind  of  treatment  by  prayer. 
It  was  contended  that  this  exemption  made  the  whole  act  unconstitutional  and 
void,  and  that  it  gives  to  a  certain  class  of  persons,  to-wit,  those  who  treat  physi- 
cal ills  by  prayer,  privileges  and  immunities,  which  "under  like  conditions  are 
not  granted  to  all  citizens."  But  the  court  does  not  so  construe  the  section.  If 
prayer  can  be  regarded  as  practicing  medicine  and  as  an  immunity,  the  act,  the 
court  says,  allows  every  person,  man,  woman  or  child,  such  immunity  and  the 
right  to  pray  for  the  sick  and  afflicted,  and  that  is  the  only  way  that  disease 
can  be  treated  by  prayer.  Whether  such  treatment  avails  anything  or  not  is 
not  for  the  court  to  say;  but  the  privilege  of  practicing  such  treatment  or  such 
supplication  is  granted  and  allowed  to  all.  The  proviso  or  exception  was  evi- 
dently put  into  the  act  to  prevent  any  interference  with  the  right  of  any  one 
to  pray  for  the  sick  and  afflicted. 

MEDICAL    PRACTICE    ACT    NOT    IN    CONFLICT    WITH    FEDERAL 

CONSTITUTION 

Harding  v.  People,  10  Colo.  387;  15  Pac.  727 

1887 

The  Supreme  Court  holds  that  an  act  entitled  "An  act  to  protect  the  public 
health  and  regulate  the  practice  of  medicine  in  the  state  of  Colorado"  was  not 
in  conflict  with  section  2,  article  IV,  of  the  constitution  of  the  United  States, 
which  provides  that  "the  citizens  of  each  state  shall  be  entitled  to  all  privileges 


261 

and  immunities  of  citizens  in  the  several  states,"  or  with  that  part  of  the  four- 
teenth amendment  which  provides  that  "no  state  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United  States." 

Nor  did  the  statute  violate  the  provision  of  the  state  constitution  that  no 
hill  shall  be  passed  containing  more  than  one  subject,  which  shall  be  clearly 
expressed  in  its  title,  it  being  clear  that  the  act  concerned  but  one  subject  of 
legislation,  namely,  the  regulation  of  the  practice  of  medicine  within  the  state. 
It  was  true  that  the  title  expressed  both  the  general  and  special  character  of 
the  act,  but  the  court  sees  no  objection  to  that.  It  none  the  less  clearly  expressed 
the  subject  of  the  act. 

Objection  made  to  the  regularity  of  the  appointment  and  organization  of  the 
board  need  not  be  considered  in  this  case,  which  is  a  prosecution  for  unlawfully 
practicing  medicine.  It  was  enough  that  the  board  was  de  facto  the  state  board 
of  medical  examiners,  acting  under  the  provisions  of  the  statute,  and  that  its 
certificate  would  have  protected  the  defendant  from  prosecution  under  the  statute. 

It  was  claimed  that  the  act  nowhere  prohibited  the  practice  of  medicine  with- 
out a  certificate  from  the  board  of  medical  examiners.  This  objection  applied 
alone  to  the  letter  of  the  law.  The  provisions  of  the  act  showed  beyond  any 
question  that  the  clear  intention  of  the  legislature  was  to  require  all  persons 
desiring  to  practice  medicine  or  surgery  within  the  state  after  its  passage  to 
apply  for  and  receive  a  certificate  of  qualification  from  the  state  board  of  med- 
ical examiners  before  they  were  authorized  to  do  so.  This  was  the  essential 
requirement  of  the  statute,  and  all  its  provisions  were  substantially  to  that  end. 

Section  4  of  the  act  declared  that  every  person  practicing  medicine  in  any  of 
its  departments  should  possess  the  qualifications  required  by  this  act.  Whether  a 
person  possesses  the  qualifications  required  could  be  determined  only  in  one  way, 
namely,  in  the  mode  prescribed  by  the  statute,  and  could  be  proven  only  in  one 
way,  namely,  by  the  evidence  prescribed  by  the  statute.  The  provisions  respect- 
ing the  mode  of  determining  this  fact,  and  the  evidence  of  the  determination 
were  exclusive.  The  party  wishing  to  practice  must  appear  before  the  state 
board  of  medical  examiners  established  by  the  act,  must  present  the  requisite 
diploma  or  stand  the  examination  prescribed.  If  his  diploma  or  his  examination, 
as  the  case  might  be,  was  satisfactory  to  the  board  of  examiners,  they  "shall 
issue  their  certificate  in  accordance  with  the  fact,"  "and  the  holder  of  the  certifi- 
cate shall  be  entitled  to  all  the  rights  and  privileges  mentioned  in  the  act." 
Until  he  does  this,  he  is  without  the  requisite  and  only  admissible  evidence  that 
he  possesses  the  qualifications  required  by  the  act,  so  as  to  entitle  him  to  prac- 
tice medicine  within  the  state,  and  cannot  say  that  he  has  complied  with  the 
provisions  of  the  act. 

This  is  not  a  law  which  comes  within  the  rule  that  penal  laws  are  to  be  con- 
strued strictly.  It  was  not  necessary  to  allege  any  criminal  intent.  The  rule  is 
that,  if  the  statute  creating  the  offense  is  silent  concerning  the  intent,  there  need 
be  no  intent  alleged.  The  evidence  showed  that  the  accused  was  engaged  in  the 
practice  of  medicine  by  the  administration  or  application  of  electricity  as  & 
curative  agent,  and  without  having  first  obtained  a  certificate  from  the  state 
board  of  medical  examiners  as  required  by  the  act.  If  it  was  true  that  the 
board  of  examiners  arbitrarily  refused  her  application  for  a  certificate  to  prac- 
tice, her  remedy  was  mandamus. 


EQUAL  REPRESENTATION  ON  STATE  BOARD  NOT  NECESSARY 

Brown  v.  People,  11  Colo.  109;  11  Pac.  104 

1888 

The  plaintiff  was  found  guilty  and  fined  $50  on  an  information  preferred 
against  him  for  practicing  medicine  within  the  state,  without  having  received 
from  the  state  board  of  medical  examiners  a  certificate  authorizing  him  to  prac- 
tice. The  questions  presented  by  the  record  and  discussed  by  counsel  are,  in  the 
main,  identical  with  the  questions  raised  and  decided  in  the  case  of  Harding  v. 
People  (vide  supra).  The  court  considers  two  objections,  going  to  the  constitu- 
tionality of  the  statute  under  which  the  plaintiff  was  convicted. 


262 

1.  There  is  nothing  in  the  constitution  which  requires  that  each  school  of 
medicine  named  in  the  act  should  be  represented  by  equal  numbers  on  the  state 
board  of  medical  examiners.  The  framers  of  the  constitution  did  not  attempt 
the  establishment  of  a  government  that  should  be  administered  absolutely  free 
from  prejudice.  In  this  respect  the  restraint  of  an  official  oath  is  the  chief  safe- 
guard prescribed. 

2.  A  point  is  made  that  section  2  of  the  act  is  unconstitutional,  in  that  it 
provides  for  the  appointment  of  the  state  board  of  medical  examiners  by  the  gov- 
ernor, whereas,  under  the  provisions  of  section  6,  article  4,  constitution,  it  is  con- 
tended the  governor  should  nominate,  and  by  and  with  the  consent  of  the  senate 
appoint.  This  constitutional  provision  does  not  apply  to  offices  created  by  statute 
to  be  filled  as  therein  otherwise  provided.  Independently  of  this,  the  office  being 
de  jure,  one  appointed  to  it  is  de  facto  an  officer,  notwithstanding  the  mode  of 
appointment  may  be  unconstitutional.     Judgment  affirmed. 


CAN  COLLECT  BILL  WITHOUT  RECORDING  CERTIFICATE 

Riley  v.  Collins,  16  Colo.  App.  280;  6k  Pac.  1052 

1901 

Section  2624  of  the  General  Statutes  of  Colorado  reads:  "Every  person  hold- 
ing a  certificate  from  the  state  board  of  medical  examiners  should  have  it 
recorded  in  the  office  of  the  clerk  of  the  county  in  which  he  resides,  and  the 
record  shall  be  endorsed  thereon.  Any  person  removing  to  another  county  to 
practice,  shall  procure  an  endorsement  to  that  effect  on  the  certificate  from  the 
county  clerk,  and  shall  record  the  certificate  in  like  manner  in  the  county  to 
which  he  removes;  and  the  holder  of  a  certificate  shall  pay  to  the  county  clerk 
a  fee  of  $1  for  making  the  record."  It  will  be  observed  that  the  section,  if  man- 
datory at  all,  the  Court  of  Appeals  of  Colorado  says,  is  such  only  to  the  extent 
of  requiring  a  record  in  the  county  where  the  physician  resides.  Then,  even 
conceding  that  the  certificate  must  be  recorded  there  before  services  are  rendered 
in  order  to  entitle  a  physician  to  recover  for  same,  the  court  points  out  that  a 
want  of  compliance  with  this  requirement  would  not  appear  simply  from  the 
fact  that  the  certificate  was  not  recorded  in  the  county  in  which  the  services 
were  rendered.  It  must  further  appear  that  the  physician  resided  in  that  county; 
and  this  would  be  a  matter  of  defense,  properly  to  be  established  by  the  party 
sued,  if  it  could  avail  at  all.  The  most  strained  construction  of  the  statute 
would  nowhere  indicate  an  intent  on  the  part  of  the  legislature  to  require  a 
physician,  if  called  into  a  county  other  than  that  of  his  regular  residence,  first 
to  file  in  such  county,  and  have  recorded  his  certificate  or  license,  before  he 
would  be  authorized  to  attend  a  patient,  or  be  permitted  to  recover  for  his  serv- 
ices rendered.  Such  a  construction,  the  court  declares,  would  be  absurd.  Nor 
does  it  believe  that  the  statute  will  bear  being  construed  to  make  the  recording 
of  the  certificate  in  the  county  of  residence  a  condition  to  maintaining  an  action 
for  services.  The  recording  of  the  certificate  is  probably  a  reasonable  require- 
ment, so  that  the  public  might  have  an  opportunity  of  ascertaining  from  an 
examination  of  the  public  records  who  were  licensed  to  practice,  and  could  also 
see  whether  the  certificate  was  issued  upon  a  diploma  of  a  college — and,  if  so, 
of  what  college — or  upon  examination,  or  by  reason  of  practice  for  a  term  of 
years.  But,  in  the  absence  of  a  provision  that  this  must  be  done  before  the 
holder  of  the  certificate  could  practice,  or  could  recover  for  services  rendered, 
the  court  feels  that  it  would  be  an  unwarranted  construction  to  so  hold.  The 
party  who  employs  a  physician  is  not  wronged  nor  imposed  upon  by  the  failure 
to  file  if  the  physician  holds  the  required  certificate  of  qualifications.  The  author- 
ities cited  in  support  of  a  contrary  view  were  based,  so  far  as  the  court  can 
ascertain  from  the  opinions  in  the  cases,  upon  statutes  essentially  different  from 
that  here  under  consideration,  of  which  another  section  (2628)  plainly  says  that 
the  issuance  of  the  certificate  by  the  state  board  "shall  be  conclusive  as  to  the 
rights  of  the  lawful  holder  of  the  same  to  practice  medicine  in  this  state." 


263 

LIMITING  PRIVILEGE  TO  PHYSICIANS   OF  STATE 
Head  Camp,  Pacific  Jurisdiction,   Woodmen  of  the   World  v.   Loeher,   11   Colo. 

App.  2>,7;  68  Pac.  136 
1902 
Section  3G49  of  the  General  Statutes  of  Colorado  provides:  "A  physician  or 
surgeon  duly  authorized  to  practice  his  profession  under  the  laws  of  this  state, 
shall  not  without  the  consent  of  his  patient  he  examined  as  to  any  information 
acquired  in  attending  the  patient,  which  was  necessary  to  enahle  him  to  pre- 
scribe or  act  for  the  patient."  The  cpiestion  was  raised  as  to  the  effect  to  he 
given  the  words,  "duly  authorized  to  practice  his  profession  under  the  laws  of 
this  state."  It  was  urged  that  the  words  should  not  be  construed  in  the  sense 
of  limiting  or  restricting  the  class  to  which  the  statutory  privilege  applied,  but 
rather  in  accord  with  what  it  was  contended  was  the  policy  and  intent  of  the 
enactment  as  expressed  in  the  preamble,  which  recites  that  "there  are  particular 
relations  in  which  it  is  the  policy  of  the  law  to  encourage  confidence,  and  to 
preserve  it  inviolate,"  etc.  In  other  words,  it  was  insisted  that  the  words  in 
question  should  be  entirely  eliminated  from  the  statute,  thereby  making  it  apply 
to  all  physicians,  authorized  or  unauthorized  to  practice,  licensed  or  unlicensed. 
But  the  Court  of  Appeals  of  Colorado  does  not  see  how,  under  any  authority  or 
rule  of  construction,  a  court  would  be  permitted  to  pursue  that  course  in  this 
case,  where  it  was  conceded  that  the  witness,  a  physician  resident  in  New  Jersey, 
was  not  authorized  to  practice  his  profession  under  the  laws  of  Colorado.  It 
says  that  the  provisions  of  the  statute  as  it  now  reads  are  clear,  intelligible,  and 
easily  understood,  cannot  be  said  to  be  in  any  sense  unreasonable  or  absurd,  are 
subversive  of  no  legal  private  rights,  and  are  not  inconsistent  with  themselves 
or  with  any  other  law.  Under  such  circumstances,  however  fully  the  court  might 
agree  with  counsel  that  they  should  be  extended  and  broadened,  the  courts  are 
without  power  in  that  regard.  The  remedy  is  with  the  legislature  alone.  That 
no  state  has  a  similar  law — one  containing  the  restrictive  words  under  considera- 
tion— the  court  says,  is  not  an  argument  that  they  were  improvidently  used,  and 
that  the  courts  of  Colorado  should  disregard  them.  Rather,  if  the  fact  has  any 
bearing  upon  the  question  at  all,  it  would  tend  to  support  the  contention  that 
they  were  inserted  advisedly,  and  for  a  specific  purpose.  The  statute  was 
enacted  in  1883.  This  was  the  legislative  session  immediately  succeeding  the 
one  (1881)  in  which  the  legislature  first  adopted  the  law  providing  regulations 
for  the  practice  of  medicine  in  Colorado,  and  prohibiting  it  without  a  party  hav- 
ing been  first  authorized  under  its  provisions.  It  may  well  be  that  the  legisla- 
ture placed  these  words  in  the  later  statute  with  the  deliberate  purpose  of  carry- 
ing out  and  aiding  the  policy  which  it  had  adopted  in  the  prior  one.  Wherefore 
the  court  holds  that  the  physician  referred  to  was  not  rendered  incompetent  to 
testify  as  a  witness  because  of  this  statute. 


BOARD  NOT  LIABLE  FOR  DAMAGES  FOR  PROSECUTION 
Van  Meter  v.  Bass,  40  Colo.  78;  90  Pac.  637 
1907 
Bass  sued  Van  Meter  and  others,  constituting  the  state  board  of  medical 
examiners,  for  alleged  malicious  prosecution  for  practicing  medicine  without  a 
license,  under  the  law  of  1881,  he  being  an  osteopath,  and  having  been  held  not 
guilty  of  violating  the  statute  of  1881.  The  Supreme  Court  says  that  Dr.  Van 
Meter,  who  was  secretary  of  the  board,  and  was  instructed  by  it  to  consult  with 
the  district  attorney  and  ascertain  if  those  practicing  osteopathy  were  violating 
the  statute,  and  if  so,  to  file  informations  against  them,  not  only  consulted  with 
the  district  attorney  and  his  deputies,  but  with  several  other  able  and  conscien- 
tious counsel.  He  read  the  reports  of  decided  cases  from  other  states,  and  pre- 
sented the  matter  fully  and  thoroughly  to  the  public  prosecutor.  The  public 
prosecutor  advised  the  commencement  of  the  action.  The  case  against  Bass 
failed,  not  because  of  the  lack  of  testimony,  not  because  it  was  shown  that  the 
statements  made  to  the  district  attorney  were  untrue,  not  because  of  any  mis- 
take as  to  the  facts,  but  because  the  trial  court  differed  with  the  district  attorney 


264 

in  the  interpretation  of  the  statute.  Afer  having  taken  the  advice  that  he  did 
take,  the  secretary  of  the  board  was  justified  in  instituting  the  prosecution,  and 
the  board  could  not  be  held  responsible  to  Bass  for  damages  because  the  district 
attorney  and  the  trial  court  disagreed  as  to  the  law.  Inasmuch  as  the  statute 
involved  was  amended  by  the  legislature  in  1905,  the  Supreme  Court  does  not 
see  that  a  construction  of  the  old  law  by  it  would  serve  any  useful  purpose. 


ILLEGAL  PEACTICE  OF  MEDICINE  FOR  TEN  YEARS  DOES  NOT  ENTITLE 

TO  LICENSE 

Eiggins  v.  State  Board  of  Medical  Examiners,  J/6  Colo.  //76;  10^  Pac.  9^3 

1909 

The  plaintiff,  not  a  graduate  in  medicine,  having  applied  to  the  board  for  a 
license  to  practice  medicine  and  surgery  without  examination,  and  the  board 
having  denied  his  application,  brought  this  action  to  compel  the  board,  by  man- 
damus, to  issue  the  license.  He  claimed  that,  as  he  had  made  the  practice  of 
medicine  and  surgery  his  profession  continuously  for  a  period  of  more  than  ten 
years  prior  to  Feb.  2,  1905,  the  date  of  his  application,  he  was  entitled  to  a  license 
under  section  4  of  the  law  of  1881,  the  concluding  sentence  of  which  reads:  "All 
persons  who  have  made  the  practice  of  medicine  and  surgery  their  profession  or 
business  continuously,  for  the  period  of  ten  (10)  years,  within  this  state,  and 
can  furnish  satisfactory  evidence  thereof  to  the  state  board  of  medical  examiners, 
shall  receive  from  said  board  a  license  to  continue  practice  in  the  state  of 
Colorado." 

The  plaintiff  insisted  that  the  practicing  of  medicine  and  surgery  for  any 
continuous  period  of  ten  years,  whether  before  or  after  the  passage  of  the  statute 
mentioned,  although  in  defiance  of  law,  entitled  him  to  a  license.  The  board,  on 
the  other  hand,  contended  that  no  person  is  entitled  to  a  license  from  it  unless: 
( 1 )  He  proves  that  he  is  a  graduate  of  a  legally  chartered  medical  school  of 
good  standing.  (2)  He  passes  a  satisfactory  examination.  (3)  He  proves  that 
he  has  made  the  practice  of  medicine  and  surgery  his  profession  or  business  con- 
tinuously for  the  period  of  ten  years  prior  to  the  passage  of  the  act. 

Section  12  of  the  act  provides  that  the  person  who  practices  medicine  in  the 
state  of  Colorado  without  a  license  from  the  board  of  medical  examiners  shall, 
on  conviction,  be  punished  by  fine  or  imprisonment,  or  both;  and  to  adopt  the 
plaintiff's  construction  would  be  to  reward,  not  punish,  those  who  elude'  prosecu- 
tion for  the  period  of  ten  years.  The  law  should  not  be  so  construed,  and  the 
court  holds  that  the  contention  of  the  board  is  correct,  and  that  those  only  who 
have  practiced  for  ten  years  prior  to  the  passage  of  the  law  of  1881  are  exempted 
from  the  provisions  of  the  statute  requiring  examination  and  proof  of  gradua- 
tion. In  the  case  of  State  V.  Wilson,  62  Kans.  621;  64  Pac.  23,  that  court  said: 
"Can  it  be  that  the  legislature  intended  that  a  person  might  qualify  himself  for 
the  practice  by  that  which  the. act  prohibited?  Is  the  direct  and  persistent  vio- 
lation of  the  law  to  be  deemed  the  equivalent  of  character,  education,  experience, 
and  skill  which  the  statute  requires  for  the  protection  of  life  and  health?"  These 
identical  questions  are  presented  to  this  court,  and  it  does  not  hesitate  to  answer 
them  in  the  negative.     A  judgment  of  nonsuit  is  affirmed. 


PRETENDING  TO  CURE  SICKNESS  BY  REMOVING  EVIL  SPIRITS 

State  v.  Durham,  (Dela.)  5  Pennewill  105;  58  Atl.  1024 

1904 

The  Court  of  General  Sessions  says  that  it  was  claimed  on  the  part  of  the 
state  that  the  defendant  pretended  that  a  certain  Rachel  A.  Fitzgerald  was  pos- 
sessed of  an  evil  spirit,  that  her  sickness  was  caused  by  the  presence  of  this  evil 


265 

spirit,  and  that  he  alone  possessed  the  power  to  remove  the  same,  and  to  heal 
her  disease  or  cure  her  of  her  sickness.  The  indictment  was  founded  on  a  statute 
of  that  state  against  pretending  to  exercise  the  art  of  witchcraft,  conjuration, 
fortune-telling,  or  dealing  with  spirits,  which  statute,  the  court  says,  is  founded 
in  wisdom.  The  purpose  of  that  statute  manifestly  is  to  protect  people  in  cer- 
tain grades  of  life  from  being  imposed  on  by  persons  pretending  to  possess  a 
power  that  they  do  not  have.  It  is  a  matter  of  common  experience  that  persons 
afflicted  with  disease  rely  ofttimes  on,  or  give  credit  to,  persons  who  claim  to  be 
possessed  of  supernatural  powers.  Those  who  are  oftenest  subject  to  that  imposi- 
tion are  particularly  people  who  are  weak,  and  who  are  in  great  stress  of  sick- 
ness; and  this  law  was  designed  to  protect  just  such  people  from  imposters,  if 
any  such  there  be,  who  may  go  around  and  make  pretense  of  healing  or  curing 
through  the  exercise  of  supernatural  power,  which  the  intelligence  and  enlighten- 
ment of  this  day  utterly  denounce  and  discredit.  If  the  jury  believed  from  the 
testimony  in  this  case  that  the  defendant  did  make  pretense  that  he  alone  had 
the  power  to  remove  these  evil  spirits  and  cure  Rachel  A.  Fitzgerald  of  her  sick- 
ness by  reason  of  his  influence  over  these  spirits,  its  verdict  should  be  "guilty." 
If  the  defendant  was  guilty,  he  ought  not  to  be  turned  loose.  The  verdict  returned 
was  "guilty." 


WHAT  CONSTITUTES  "PRESCRIBING  REMEDIES,"  AND  THE  PRACTICE 

OF  MEDICINE? 

State  v.  Lawson  (Dcla.)  6  Penneicill  3U5;  65  Atl.  593 

1908 

The  chief  justice  of  the  Court  of  General  Sessions,  in  charging  the  jury,  said 
that  the  defendant  was  charged  with  practicing  medicine  without  a  license  which, 
under  the  statutes  of  Delaware,  is  a  misdemeanor.  The  persons  classed  by  the 
statute  as  physicians  are  as  follows:  "Every  person  (except  apothecaries)  whose 
business  it  is  for  fee  and  reward  to  prescribe  remedies  or  perform  surgical  opera- 
tions for  the  cure  of  any  bodily  disease  or  ailing  shall  be  deemed  a  physician  or 
dentist,  as  the  case  may  be,  within  the  meaning  of  this  act."  The  defendant  did 
not  contend  that  he  had  a  license  to  practice,  medicine,  but  relied  on  the  defense 
that  he  treated  his  patients  personally  by  hypnotism  and  massage,  without  pre- 
scribing any  remedies,  and  that  such  treatment  was  not  in  violation  of  the 
statute. 

The  jury's  inquiry  then  was:  "Did  the  defendant  for  fee  or  reward  'prescribe 
remedies'  or  perform  surgical  operations  for  the  cure  of  any  bodily  disease  or 
ailing?"  The  court  instructed  the  jury  that  to  "prescribe  remedies"  is  "to  write 
or  to  give  medical  directions;  to  indicate  remedies."  It  is  not  necessary  that 
such  prescription  should  be  in  writing.  It  may  be  given  or  indicated  verbally. 
Any  directions  given  to  the  patient  for  drugs,  medicines  or  other  remedies  for 
the  cure  of  bodily  diseases,  directing  how  they  are  to  be  applied  to  or  used  by 
the  patient,  is  prescribing  remedies  within  the  meaning  of  the  statute.  It  would 
make  no  difference  whether  the  direction  was  given  by  the  defendant  himself  or 
by  another  person,  even  though  such  other  person  be  a  licensed  physician,  but 
engaged  by  and  acting  under  the  control  and  direction  of  the  defendant  in  that 
particular  in  the  conduct  of  his  business. 

If  the  testimony  showed  that  the  defendant  gave  directions  to  or  indicated  to 
any  of  his  patients  that  they  use  powders,  plasters,  baths  of  alcohol,  whiskey  or 
mud,  or  other  remedies  of  any  kind,  such  direction  or  indication  by  him  would 
be  prescribing  remedies,  and  make  him  liable  under  this  statute.  If  the  defendant 
was  guilty  of  the  crime  charged  in  the  indictment,  it  was  the  jury's  duty  to 
convict  him.  The  laws  of  the  state  are  designed  to  protect  the  community,  and 
especially  that  portion  of  it  which  by  reason  of  sickness  and  disease  is  peculiarly 
subject  to  imposition. 


266 

WHAT   CONSTITUTES   PRACTICING  MEDICINE 

Springer  v.  The  District  of  Columbia,  23  App.  D.  C.  59 

1904 

The  Court  of  Appeals  of  the  District  of  Columbia,  affirming  a  conviction  of 
practicing  medicine  and  publicly  professing  to  do  so  without  first  having  obtained 
a  license  so  to  do  in  the  manner  required  by  law,  says  that  the  statute  not  declar- 
ing what  specific  acts  shall  constitute  "practicing  medicine"  or  what  it  is  to 
"publicly  profess  to  do  so,"  it  is  for  the  courts  to  determine  whether  the  facts 
proved  in  a  particular  case  bring  it  within  the  terms  of  the  statute,  taking 
these  in  the  sense  in  which  they  are  commonly  understood.  Here  it  appeared 
from  the  evidence  that  the  party  proclaimed  himself  an  expert  in  the  treatment 
of  alcoholism,  and  had  several  patients.  He  furnished  the  remedies  and  employed 
licensed  physicians  to  take  immediate  charge.  These  gave  his  remedies,  and 
the  only  discretion  exercised  by  them  was  in  respect  of  the  frequency  of  the 
doses,  and  of  any  complication  that  might  ensue.  In  other  words,  professing 
knowledge  of  the  science  of  medicine,  he  obtained  patients,  diagnosed  their  cases, 
decided  that  they  were  suffering  from  a  malady  for  which  he  had  discovered  or 
compounded  a  remedy,  prescribed  and  furnished  that  remedy,  and  employed  other 
physicians  to  take  immediate  charge  of  the  patients  and  administer  the  same. 
Selling  his  compound  to  such  persons  as  he  might  examine  and  pronounce  fit 
subjects  of  medical  treatment  was  "practicing  medicine"  as  much  as  if  he  had 
given  them,  instead,  an  ordinary  prescription  that  could  be  satisfied  in  any  regu- 
lar drug  store.  The  fact  that  he  registered  at  a  hotel  as  "Dr."  would  not  be 
sufficient  proof  of  a  violation  of  the  statute,  but  it  was  admissible  to  show,  in 
connection  with  other  evidence,  that  he  held  himself  out  as  a  practitioner. 


COMPLAINT  MUST  SPECIFY  "UNPROFESSIONAL"  ACTS 

Czarra  v.  Board  of  Medical  Supervisors  of  the  District  of  Columbia,  24  App.  D.  C. 

251;  32  Wash.  L.  B.  1U 
1904 

This  is  an  appeal  from  the  decision  of  the  Board  of  Medical  Supervisors  of 
the  District  of  Columbia  revoking  the  license  of  Czarra,  on  account  of  alleged 
unprofessional  and  dishonorable  conduct. 

The  authority  of  said  board  to  revoke  the  licenses  of  physicians  is  derived 
from  section  10  of  an  act  of  Congress  of  June  3,  1896  (29  Stat.  L.  198),  entitled 
"An  act  to  regulate  the  practice  of  medicine  and  surgery,  to  license  physicians 
and  surgeons,  and  to  punish  persons  violating  the  provisions  thereof,  in  the  Dis- 
trict of  Columbia."  Said  act  authorizes  the  revocation  of  licenses  for  any  of  the 
following  causes: 

"The  employment  of  fraud  or  deception  in  passing  the  examinations  provided 
for  in  this  act,  chronic  inebriety,  the  practice  of  criminal  abortion,  conviction  of 
crime  involving  moral  turpitude,  or  of  unprofessional  or  dishonorable  conduct." 

It  is  also  provided,  in  section  10  of  said  act,  as  follows:  "In  complaints 
under  this  section  the  accused  shall  be  furnished  with  a  copy  of  the  complaint 
and  given  a  hearing  before  said  board,  in  person  or  by  attorney,  and  witnesses 
may  be  heard  for  and  on  behalf  of  the  accused,  and  for  and  on  behalf  of  the  said 
board.  Appeal  from  the  decision  of  said  board  may  be  taken  to  the  Court  of 
Appeals  of  the  District  of  Columbia,  and  the  decision  of  said  court  shall  be  final." 

On  the  6th  day  of  January,  1904,  a  complaint  was  presented  before  the  board 
against  the  appellant,  Czarra,  and  a  copy  was  served  upon  the  appellant  Czarra, 
with  notice  of  the  time  and  place  of  hearing  to  be  had  thereon.  At  the  hearing 
before  the  board  Czarra  denied  the  legal  power  and  authority  of  the  board  to 
determine  whether  he  was  guilty  of  the  offense  of  distributing  an  obscene  circular 
or  other  lewd  or  immoral  publication  in  the  District  of  Columbia,  the  law  having 


267 

vested  such  jurisdiction  in  the  police  court  of  the  district,  and  the  board  having 
no  power  to  revoke  his  license  as  a  physician  until  he  shall  have  been  duly  tried 
and  convicted  of  such  offense.  The  proceeding  was  further  objected  to  on  the 
ground  that  the  complaint  filed  against  him  was  insufficient,  because  there  is  no 
identification  of  the  corpus  delicti  .  .  .  there  is  no  specification  .  .  .  noth- 
ing to  which  this  party  can  plead.  ...  It  does  not  designate  a  circular,  book, 
or  pamphlet.  .  .  .  There  is  no  means  of  identification  by  which  he  may  be 
informed  of  the  nature  and  cause  of  his  offense." 

These  objections  were  overruled  by  the  board,  and  the  trial  proceeded  with, 
resulting  in  a  revocation  of  appellant's  license.  The  appellant  asks  for  a  reversal 
of  the  board's  action,  claiming  that  the  board  of  medical  supervisors  were  with- 
out authority  to  pass  the  resolution  revoking  the  license  of  the  appellant,  because 
so  much  of  the  act  of  Congress  of  June  3,  1896,  as  purports  to  confer  upon  said 
board  authority  to  revoke  the  license  of  a  licentiate  for  "unprofessional  or  dis- 
honorable conduct"  is  unconstitutional  and  void  for  uncertainty;  that  the  com- 
plaint filed  against  the  appellant  does  not  state  facts  sufficient  to  cause  him  to 
answer,  and  that  the  evidence  adduced  at  the  hearing  was  not  sufficient  to  war- 
rant the  board  in  revoking  his  license. 

The  court  disregards  the  first  and  third  objections,  but  holds  that  a  careful 
reading  of  the  complaint  filed  against  the  appellant  fails  to  disclose  that  he  is 
anywhere  charged  with  anything  for  which  he  could  be  held  to  answer  under  any 
possible  interpretation  of  the  act  in  question.  The  complaint  simply  charges: 
(1)  That  the  appellant  was  "arrested  and  charged  in  the  police  court  of  the 
District  of  Columbia  with  distributing  obscene  literature."  (2)  That  "when  the 
case  against  him  was  called  in  the  said  court  he  forfeited  the  collateral  of  $50, 
which  he  had  put  up  for  his  appearance."  (3)  That  the  appellant,  in  conversa- 
tion with  the  complainant  (Proctor),  admitted  "that  he  had  distributed  the  cir- 
cular for  which  he  was  arrested  and  forfeited  collateral."  (4)  "All  of  which  is 
conduct  of  an  unprofessional  and  dishonorable  character." 

The  language  of  this  complaint  may  be  searched  in  vain  to  find  any  charge 
of  unprofessional  or  dishonorable  conduct  against  the  appellant,  unless  it  could 
be  said  that  by  being  charged  in  the  police  court  with  distributing  obscene  litera- 
ture, depositing  collateral,  and  thereafter  forfeiting  such  collateral,  the  appellant 
was  guilty  of  unprofessional  or  dishonorable  conduct.  It  is  not  even  charged 
that  the  circular  which  is  alleged  to  have  been  distributed  was  distributed  within 
the  District  of  Columbia,  nor  that  the  appellant  ever  distributed  it  at  all.  He 
is  simply  charged  with  having  made  the  admission  that  he  had  distributed  the 
circular  referred  to;  and  surely  such  admission  does  not  constitute  "unprofes- 
sional or  dishonorable  conduct"  within  the  meaning  of  the  statute.  The  alleged 
distribution  should  have  been  charged  as  a  fact,  if  such  was  relied  upon  as  the 
ground  of  complaint,  and  not  the  mere  admission  of  such  distribution.  It  is 
not  conceivable  that  any  man  can  be  held  to  answer  a  charge  so  grave  in  its 
character  and  so  far-reaching  in  its  influence  upon  his  standing  and  reputation 
as  a  physician,  and  yet  so  vague  and  indefinite  as  this. 

The  court  bases  its  opinion  in  this  case  on  the  insufficiency  of  the  complaint 
filed  against  the  appellant,  but  notes  that  this  was  not  the  principal  question 
that  was  dwelt  upon  in  argument,  which  was  devoted  to  the  question  of  the  alleged 
invalidity  of  the  statute  for  the  violation  of  which  the  appellant  was  tried. 
Without  expressing  any  opinion  on  this  point,  the  court  calls  the  attention  of 
the  authorities  to  the  fact  that  grave  doubt  is  entertained  as  to  the  power  of 
Congress  to  delegate  to  the  board  of  medical  supervisors  or  to  any  other  similar 
body  the  authority  to  determine  what  shall  constitute  "unprofessional  or  dishon- 
orable conduct"  in  a  medical  practitioner  so  far  as  to  render  such  a  practioner 
guilty  of  a  criminal  offense  if  he  attempts  to  continue  in  the  practice  of  his 
profession  after  having  been  adjudged  guilty  of  such  conduct  by  a  board  of  med- 
ical supervisors.  Certainly  it  would  seem  more  appropriate  that  Congress  itself 
in  its  enactments  should  specifically  define  what  shall  constitute  "unprofessional 
or  dishonorable  conduct"  for  the  purpose  of  this  legislation  than  leave  so  vital  a 
subject  to  the  possible  caprice  of  any  board  of  supervisors.    Reversed. 


268 

TERM  "UNPROFESSIONAL  OR  DISHONORABLE   CONDUCT"  TOO 
INDEFINITE 

Czarra  v.  Board  of  Medical  Supervisors  of  the  District  of  Columbia,  25  App.  D.  C. 
US;  33  Wash.  Law  Rep.  1,70 

1905 

The  appellant  Avas  first  brought  before  the  board  of  medical  supervisors  in 
January,  1904,  and  his  license  ordered  revoked  upon  a  complaint  made  of  unpro- 
fessional and  dishonorable  conduct  in  the  distribution  of  obscene  literature,  con- 
sisting of  a  pamphlet  purporting  to  relate  to  the  cause,  prevention  and  cure, 
among  other  things,  of  venereal  and  secret  diseases,  and  of  certain  filthy  and 
indecent  habits  and  practices.  Upon  appeal  the  order  was  reversed  because  of  the 
insufficiency  of  the  complaint.  On  January  11,  1905,  another  complaint  was  made 
against  Czarra,  charging  him  with  unprofessional  and  dishonorable  conduct,  in 
distributing  a  pamphlet,  containing  obscene  language,  a  copy  of  which  was 
attached  as  part  of  the  complaint  and  was  identical  with  that  referred  to  m  the 
former  complaint. 

Due  notice  was  given  to  the  party,  and  he  appeared  by  counsel  before  the 
board.  Czarra  stated  that  the  act  of  Congress  in  so  far  as  it  purports  to  convey 
authority  to  revoke  his  license  for  alleged  unprofessional  or  dishonorable  conduct 
is  void  for  uncertainty;  that  the  board  had  not  prior  to  the  commission  of  the 
alleged  offense  established  any  rules  defining  unprofessional  or  dishonorable  con- 
duct, and  any  such  made  since  are  ecu  post  facto;  and  that  he  had  been  once  tried 
and  convicted  of  the  same  offense. 

The  court  holds  that  the  last  two  grounds  of  the  plea  to  the  jurisdiction  are 
without  merit.  No  question  of  an  ex  post  facto  law  can  arise  because  the  con- 
viction was  had  upon  the  law  previously  enacted  by  Congress  and  not  upon  any 
regulations  of  the  board  of  medical  supervisors  made  thereunder.  Nor  is  there 
any  case  of  former  jeopardy.  Without  regard  to  the  question  whether  the  pro- 
ceeding is  criminal,  it  is  sufficient  to  say  that  there  has  been  no  final  judgment 
of  conviction  or  acquittal.  The  former  decision  was  reversed  because  of  the 
insufficiency  of  the  complaint,  and  a  new  trial  was  the  necessary  consequence. 
The  defect  in  the  complaint  being  fatal,  there  was  nothing  to  prevent  the  filing 
of  a  new  and  effective  one. 

That  Congress  had  the  power  to  regulate  the  practice  of  medicine  and  surgery 
in  the  District  of  Columbia,  and  to  prescribe  the  reasonable  qualifications  required 
by  this  act,  as  well  as  to  create  a  special  tribunal  and  invest  it  with  the  power 
to  revoke  the  licenses  of  practitioners  for  sufficient  cause,  there  can  be  no  doubt. 
Nor  can  there  be  any  reasonable  doubt  that  sufficient  cause  exists  in  the  employ- 
ment of  fraud  or  deception  in  passing  the  examinations  required,  in  chronic 
inebriety,  the  practice  of  criminal  abortion,  or  in  case  of  conviction  of  crime 
involving  moral  turpitude,  as  declared  in  the  act.  • 

The  only  question  to  be  determined  is  whether,  independently  of  the  causes 
mentioned,  "unprofessional  or  dishonorable  conduct,"  as  declared  in  the  act,  are 
sufficiently  specific  and  certain  to  warrant  a  conviction  thereof,  and  the  exercise 
of  the  power  of  revocation  by  the  board  of  medical  supervisors. 

In  all  criminal  prosecutions  the  right  of  the  accused  to  be  informed  of  the 
nature  and  cause  of  the  accusation  against  him  is  preserved  by  the  sixth  amend- 
ment. In  order  that  he  may  be  so  informed  by  the  indictment  or  information 
presented  against  him,  the  first  and  fundamental  requisite  is  that  the  crime  or 
offense  with  which  he  stands  charged  shall  be  defined  with  reasonable  precision. 
He  must  be  informed  by  the  law  as  well  as  by  the  complaint  what  acts  or  con- 
duct are  prohibited  and  made  punishable. 

In  the  exercise  of  its  power  to  regulate  the  conduct  of  the  citizen,  within  the 
constitutional  limitations,  and  to  declare  what  shall  constitute  a  crime  or  pun- 
ishable offense,  the  legislature  must  inform  him  with  reasonable  precision  what 
acts  are  intended  to  be  prohibited.  "Every  man  should  be  able  to  know  with 
certainty  when  he  is  committing  a  crime."     V.  S.  v.  Reese,  92  U.  S.  214,  220. 

This  obvious  duty  must  be  performed  by  the  legislature  itself,  and  cannot  be 
delegated  to  the  judiciary.  It  may,  doubtless,  be  accomplished  by  the  use  of 
words  or  terms  of  settled  meaning,  or  which  indicate  offenses  well  known  to  and 
defined  by  the  common  law.     Reasonable  certainty,  in  view  of  the  conditions,  is 


269 

all  that  is  required,  and  liberal  effect  is  always  to  be  given  to  the  legislative 
intent  when  possible.  But  when  the  legislature  declares  an  offense  in  words  of 
no  determinate  signification,  or  its  language  is  so  general  and  indefinite  as  that 
it  may  embrace  within  its  comprehension  not  only  acts  commonly  recognized  as 
reprehensible,  hut  others  also  which  it  is  unreasonable  to  presume  were  intended 
to  he  made  criminal,  the  courts,  possessing  no  arbitrary  di-cn-i  ion  to  discriminate 
between  those  which  were  and  those  which  were  not  intended  to  he  made  unlaw- 
ful, can  do  nothing  else  than  declare  the  statute  void  for  its  uncertainty.  U.  S. 
v.  Reese,  92  U.  S.  214,  221.  As  was  said  in  that  case:  "It  would  r-crtainly  he 
dangerous  if  the  legislature  could  set  a  net  large  enough  to  catch  all  possible 
offenders,  and  leave  it  to  the  courts  to  step  inside  and  say  who  could  rightfully 
be  detained,  and  who  should  be  set  at  large.  This  would,  to  some  extent,  sub- 
stitute the  judicial  for  the  legislative  department  of  the  government."  The  gen- 
eral principle  was  applied  in  the  following  cases:  Sloutenburgh  v.  Frazier,  Hi 
App.  D.  0.  229,  234;  28  Wash.  Law  Rep.  256.  In  that  case  a  party  convicted  in 
the  police  court  under  an  act  of  Congress  authorizing  the  punishment  of  "all  sus- 
picious persons,"  was  discharged  on  a  writ  of  habeas  corpus. 

State  v.  Gaster,  44  La.  Ann.  630,  638.  The  statute  declared  void  in  that  case 
provided:  "If  any  judge,  justice  of  the  peace,  sheriff,  or  any  other  civil  officer 
shall  be  guilty  of  any  misdemeanor  in  the  execution  of  either  of  their  respective 
offices,  he  shall  on  conviction  suffer  fine,"  etc. 

Ex  parte  Jackson,  45  Ark.  158,  164.  The  statute  annulled  in  that  case  made 
it  a  misdemeanor  "to  commit  any  act  injurious  to  the  public  health,  or  public 
morals,  or  in  the  perversion  or  obstruction  of  public  justice  or  the  due  adminis- 
tration of  the  law." 

In  Augustine  v.  State,  41  Tex.  Cr.  App.  59,  76,  "mob  violence"  was  held  to 
be  uncertain  and  to  leave  too  much  to  the  discretion  of  the  court.  See  also, 
Jones  v.  State,  100  Ala.  32,  34;  State  v.  Partlow,  91  N.  C.  550,  553;  State  v. 
Mann,  2  Or.  23S;  L.  &  N.  R.  R.  v.  Commonwealth,  99  Ky.  132. 

"Unprofessional  or  dishonorable  conduct,"  for  which  the  statute  authorizes 
the  revocation  of  a  license  that  has  been  regularly  obtained,  is  not  defined  by 
the  common  law,  and  the  words  have  no  common  or  generally  accepted  significa- 
tion. What  conduct  may  be  of  either  kind  remains,  as  before,  a  mere  matter  of 
opinion.  In  the  absence  of  some  specification  of  acts  by  the  law-making  power, 
which  is  alone  authorized  to  establish  the  standard  of  honor  to  be  observed  by 
persons  who  are  permitted  to  practice  the  profession  of  medicine,  it  must,  in 
respect  of  some  acts  at  least,  remain  a  varying  one,  shifting  with  the  opinions 
that  may  prevail  from  time  to  time  in  the  several  tribunals  that  may  be  called 
upon  to  interpret  and  enforce  the  law. 

As  has  been  said  by  the  Supreme  Court  of  the  United  States  in  a  case  involv- 
ing the  same  principle,  the  question  must  be  reduced  to  one  of  fact  as  contra- 
distinguished from  mere  opinion.  School  of  Magnetic  Healing  v.  McAnnulty, 
187  U.  S.  94,  106.  In  that  case  an  injunction  was  granted  restraining  a  post- 
master from  refusing  to  deliver  mail  to  the  appellant,  under  an  order  of  the 
postmaster-general  authorizing  him  so  to  do,  founded  on  section  3929  R.  S.,  which 
authorizes  the  postmaster-general  to  withhold  from  the  addressee  and  return  to 
the  senders  all  letters  induced  by  any  scheme  or  device  for  obtaining  money 
through  the  mails  by  means  of  false  and  fraudulent  pretenses,  etc.  The  appellant 
was  a  chartered  institution,  engaged,  as  it  alleged,  not  only  in  treating  people 
afflicted  with  ills,  but  also  in  the  business  of  teaching  and  educating  others  in 
the  practical  science  of  healing.  Its  system  was  alleged  to  be  "founded  largely 
and  almost  exclusively  on  the  physical  and  practical  proposition  that  the  mind 
of  the  human  race  is  largely  responsible  for  its  ills,  and  is  a  perceptible  factor 
in  the  treating,  curing,  benefiting,  and  remedying  thereof.  And  that  the  human 
race  does  possess  the  innate  power,  through  proper  exercise  of  the  brain  and 
mind,  to  largely  control  and  remedy  the  ills  that  humanity  is  heir  to,  and  com- 
plainants discard  and  eliminate  from  their  treatment  what  is  commonly  known 
as  Divine  healing  and  Christian  Science,  and  are  confined  to  practical  scientific 
treatment  emanating  from  the  source  aforesaid." 

After  discussing  the  prevalent  differences  of  opinion  with  respect  to  opposing 
systems  of  ordinary  medical  treatment,  Mr.  Justice  Peckham,  speaking  for  the 
majority  of  the  court,  said:    "Other  instances  might  be  adduced  to  illustrate  the 


270 

proposition  that  these  statutes  were  not  intended  to  cover  any  case  of  what  the 
postmaster-general  might  think  to  be  false  opinions,  but  only  cases  of  actual 
fraud  in  fact,  in  regard  to  which  opinion  formed  no  basis.  It  may,  perhaps,  be 
urged  that  the  instances  above  cited  do  not  fairly  represent  the  case  now  before 
us,  but  the  difference  is  one  of  degree  only.  It  is  a  question  of  opinion  in  all 
the  cases,  and,  although  we  may  think  the  opinions  may  be  better  founded  and 
based  upon  a  more  intelligent  and  a  larger  experience  in  some  cases  than  in 
others,  yet  after  all  it  is  in  each  case  opinion  only  and  not  existing  facts  with 
which  these  cases  deal.  There  are,  as  the  bill  herein  shows,  many  believers  in 
the  truth  of  the  claims  set  forth  by  complainants,  and  it  is  not  possible  to  deter- 
mine as  a  fact  that  those  claims  are  so  far  unfounded  as  to  justify  a  determina- 
tion that  those  who  maintain  them  and  practice  upon  that  basis  obtain  their 
money  by  false  pretenses  within  the  meaning  of  these  statutes.  The  opinions 
entertained  cannot,  like  allegations  of  fact,  be  proved  to  be  false,  and  therefore  it 
cannot  be  proved  as  matter  of  fact  that  those  who  maintain  them  obtain  their 
money  by  false  pretenses  or  promises,  as  that  phrase  is  generally  understood  and 
as,  in  our  opinion,  it  is  used  in  these  statutes." 

If  a  licensed  practitioner  of  the  District  of  Columbia  were  to  engage  in  a 
similar  practice  and  advertise  a  similar  treatment,  there  can  be  little  doubt  of 
the  opinion  in  respect  of  his  conduct  that  would  be  entertained  by  the  adherents 
of  the  several  reputable  systems  of  medical  practice  recognized  by  the  act  of 
Congress;  and  it  is  quite  probable  that  the  board  of  medical  supervisors  would 
agree  with  the  postmaster-general  that  it  amounted  to  a  case  of  false  pretenses, 
and  would  therefore  regard  the  act  as  constituting  both  unprofessional  and  dis- 
honorable conduct  within  the  meaning  of  the  act  under  consideration. 

Doubtless  all  intelligent  and  fair-minded  persons  would  agree  in  the  opinion 
of  the  board  of  medical  supervisors  that  the  act  charged  against  the  appellant, 
in  the  case  at  bar,  amounted  to  conduct  both  unprofessional  and  dishonorable. 
But  this  is  not  the  test  of  the  validity  of  the  particular  clause  of  the  statute. 
The  underlying  question  involved  in  all  cases  that  may  arise  is  whether  the  courts 
can  uphold  and  enforce  a  statute  whose  broad  and  indefinite  language  may  apply 
not  only  to  a  particular  act  about  which  there  would  be  little  or  no  difference 
of  opinion,  but  equally  to  others  about  which  there  might  be  radical  dif- 
ferences, thereby  devolving  upon  the  tribunals  charged  with  the  enforcement  of 
the  law  the  exercise  of  an  arbitrary  power  of  discriminating  between  the  several 
classes  of  acts. 

As  this  is  not  strictly  a  case  of  prosecution  for  crime,  it  is  contended  that 
the  doctrine  above  announced  has  no  application,  but  that  the  appellant's  case 
must  be  governed  by  the  more  liberal  rule  which  applies  in  the  enforcement  of 
statutes  generally  regulating  admission  to  practice  under  licenses.  We  concur 
in  the  view  that  statutes  requiring  proof  of  general  qualifications,  such  as  good 
moral  character  and  the  like,  before  one  can  be  granted  a  license  to  practice  med- 
icine, stand  upon  a  different  ground  from  those  creating  offenses  and  providing 
penalties  therefore  upon  conviction.  Such  statutes  in  general  are  undoubtedly 
valid  and  enforcible.  The  police  power  of  every  state  warrants  the  requirement 
of  the  possession  of  all  reasonable  qualifications  by  those  who  seek  to  engage  in 
the  public  practice  of  medicine,  and,  incidentally,  the  extension  of  a  wide  discre- 
tion to  those  agencies  charged  with  the  duty  of  inquiry  and  determination.  But 
we  do  not  agree  that  the  exercise  of  the  same  wide  discretion  can  be  extended  to 
a  case  where,  when  one  has  been  regularly  admitted,  the  deprivation  or  forfeiture 
of  his  license  is  sought  under  another  or  an  independent  provision  of  the  same 
statute.  The  right  to  practice  the  profession,  once  regularly  obtained  by  com- 
pliance with  the  law,  becomes  a  valuable  privilege  or  right  in  the  nature  of  prop- 
erty, and  is  safeguarded  by  the  principles  that  apply  in  the  protection  of  prop- 
erty lawfully  acquired.  And  these  are  of  the  same  general  nature,  though  not  in 
all  particulars,  as  those  which  safeguard  him  when  prosecuted  for  the  commis- 
sion of  a  minor  offense.  This  conclusion  has  the  support  of  the  following  well- 
considered  cases:  Ex  parte  McNulty,  77  Cal.  164,  170;  Matthews  v.  Murphy,  63 
S.  W.  Bep.  785  (Ky.  1901).  And  in  the  American  School  of  Medicine  v.  McAn- 
nulty,  supra,  the  Supreme  Court  made  no  distinction  between  a  civil  proceeding 
relating  to  the  forfeiture  of  a  privilege  in  the  nature  of  property  and  a  criminal 
prosecution  founded  on  th*e  same  acts. 


271 

Moreover,  while  not  itself  a  criminal  prosecution,  the  proceeding  to  revoke 
the  license  is,  nevertheless,  a  preliminary  step  thereto.  The  -t;itute  provide-  ;< 
penalty  for  practicing  medicine  after  the  revocation  of  a  license,  and  in  a  prose- 
cution therefore  the  order  of  revocation  must  necessarily  he  held  to  he  conclusive 
evidence  of  the  fact. 

In  several  cases  relied  on  by  the  appellee,  state  statutes  have  been  upheld 
which  authorize  the  revocation  of  licenses  for  "gross  immorality,"  '■unprofes- 
sional, dishonorable,  or  immoral  conduct,"  and  the  like.  Meffert  v.  State  Board 
of  Med.  Registration,  72  Pac.  Rep.  247  (Kansas,  1903)  ;  State  v.  Board,  etc.,  34 
Minn.  387;  State  Board,  etc.  v.  Ray,  22  R.  T.  538;  People  v.  McCoy,  125  111.  289; 
State  v.  Kellogg,  14  Mont.  42G.  In  no  one  of  these  cases,  however,  was  the  ques- 
tion under  consideration  here  raised,  discussed,  or  decided.  The  question  dis- 
cussed in  each,  and  upon  which  the  decisions  apparently  turned,  was  the  power 
of  the  state  to  enact  regulations  of  the  kind  as  the  conditions  of  admission  to 
practice  medicine.     Of  this,  as  heretofore  observed,  there  can  be  no  doubt. 

The  case  of  State  v.  Kellogg,  supra,  is  peculiar,  and,  in  our  opinion,  well 
illustrates  the  soundness  of  the  view  that  the  statute  itself  should  indicate  the 
facts  which  constitute  unprofessional  or  dishonorable  conduct,  and  not  leave 
them  to  be  ascertained  and  settled  by  either  medical  boards  or  the  courts.  The 
license  had  been  revoked  in  that  case  by  the  board  of  medical  supervisors,  upon 
proof  that  the  appellant  had  been  seen  to  deposit  in  a  furnace  and  destroy  a 
headless  fetus,  and  when  questioned  had  refused  to  make  any  statement,  or  to 
explain  his  conduct.  Two  of  the  district  courts,  in  succession,  held,  with  the  trial 
board,  that  his  conduct  was  unprofessional  and  dishonorable.  On  final  appeal 
one  member  of  the  court  concurred  with  the  inferior  tribunals,  but  the  majority, 
being  of  a  contrary  opinion  in  respect  of  the  necessary  conclusion  to  be  deduced 
from  the  facts,  reversed  the  order  revoking  the  license. 

For  the  reasons  heretofore  given  we  are  of  the  opinion  that  the  order  appealed 
from  must  be  reversed  with  costs,  and  the  cause  remanded  with  directions  to 
dismiss  the  complaint.     It  is  so  ordered.     Reversed. 


RECIPROCITY   PROVISION   IN   MEDICAL   PRACTICE    ACT— POWERS    OF 
BOARD  AND  THEIR  LIMITATION    * 

United  States  ex  rel.  Thompson  v.  Custis  et  al.,  35  App.  D.  C.  2Jf7 ;  38  Wash. 

Law  Rep.  396 

1910 

This  case  was  brought  to  compel  the  defendant,  the  Board  of  Medical  Super- 
visors of  the  District  of  Columbia,  to  grant  the  relator  a  license  to  practice  med- 
icine and  surgery  in  the  District  of  Columbia. 

The  statute  regulating  the  practice  of  medicine  and  surgery  in  the  District  of 
Columbia  authorizes  and  directs  said  board  to  license  to  practice  medicine  and 
surgery  in  the  District,  without  examination,  any  applicant  for  such  license  who 
has  been  engaged  in  the  practice  of  medicine  and  surgery  in  any  other  jurisdic- 
tion ( state,  etc. ) ,  on  condition,  among  other  things,  that  the  applicant  acquired 
the  right  to  practice  medicine  and  surgery  in  such  jurisdiction  under  conditions 
equivalent  to  those  with  which  he  would  have  had  to  comply  in  order  then  to 
have  practiced  medicine  and  surgery  in  the  District.  "And  said  board  of  medical 
supervisors  is  further  authorized  to  determine  all  matters  of  fact  required  to  be 
determined  in  the  execution  of  the  provisions  of  this  section." 

It  was  conceded  that  the  material  provisions  of  the  Maryland  statutes  were 
the  same  as  those  of  the  District  of  Columbia;  that  the  relator  was  regularly 
admitted  to  practice  medicine  and  surgery  in  Maryland,  and  practiced  thereafter 
for  a  period  of  two  years;  that  he  presented  satisfactory  evidence  of  good  char- 
acter, paid  the  fees  required  and  complied  with  all  the  requirements  of  the 
statute.  The  board,  however,  claimed  the  power,  by  rules  and  regulations,  to 
determine  what  should  constitute  "conditions  equivalent"  under  the  statute, 
before  reciprocal  relations  between  Maryland  and. the  District  of  Columbia  could 
be  said  to  exist.  But  the  court  thinks  equivalent  conditions  exist  under  this 
statute  by  virtue  of  the  provisions  of  the  law,  and  not  under  the  rules  of  the 
board. 


272 

The  rules  which  the  board  are  authorized  to  make  are,  the  court  says,  for  its 
guidance  in  carrying  into  effect  the  provisions  of  the  law  in  the  District  of 
Columbia,  and  not  in  the  State  of  Maryland.  The  Maryland  board  may  have  an 
entirely  different  set  of  rules  for  carrying  into  effect  substantially  the  same 
statute  as  that  of  the  District  of  Columbia;  but  that  is  a  mere  matter  of  local 
procedure,  which  cannot  affect  the  reciprocal  rights  of  practitioners  of  one  juris- 
diction to  practice  in  another,  provided  they  meet  the  requirements  of  the  board 
in  the  state  where  originally  admitted  and  the  provisions  of  the  statute  in  the 
jurisdiction  where  they  desire  to  practice.  If  the  contention  of  the  board  be 
correct,  it  lies  within  its  power  to  prescribe  conditions  of  admission  to  the  boards 
of  all  states  and  territories  in  order  to  entitle  any  of  their  licentiates  to  prac- 
tice in  the  District  of  Columbia,  thereby  absolutely  annulling  the  express  pro- 
visions of  the  statute.  It  is  against  public  policy  to  place  such  arbitrary  power 
anywhere,  much  less  in  a  mere  medical  board. 

The  object  of  this  statute  was  to  open  the  doors  to  reputable  practitioners, 
and,  to  this  end,  give  full  faith  and  credit  to  the  acts  of  the  board  of  a  neighbor- 
ing state  having  equivalent  conditions,  until  it  is  clearly  shown  that  the  appli- 
cant does  not  come  up  to  the  requirements  of  the  statute  as  to  two  years'  prac- 
tice or  good  moral  character,  or  that  he  wrongfully  obtained  his  original  license 
to  practice,  either  through  his  own  fraud  or  through  the  fraud  of  the  board. 
These  are  matters  which  the  board  would  have  authority  to  investigate,  matters 
of  fact  on  which  they  could  pass,  and  their  decision  would  not  be  subject  to 
review  in  a  proceeding  of  this  kind.  But  no  such  showing  was  here  made.  The 
whole  action  of  the  board  was  based  on  the  fact  that  they  had  a  different  system 
of  grading  for  admission  to  practice  than  that  adopted  by  the  Maryland  board. 
About  the  most  inequitable  test  of  ability  that  can  be  applied  is  the  comparison 
of  examination  grades  derived  from  either  the  same  or  different  sources.  It 
would  certainly  be  dangerous  to  make  arbitrary  power  dependent  on  such  a  decep- 
tive test.  It  is  well  settled  that  licensing  boards  are  not  vested  with  personal 
or  arbitrary  power,  but  are  subject  to  the  control  of  the  courts  when  it  appears 
that  they  have  acted  arbitrarily  in  refusing  a  license.  This  power  is  inherent  in 
the  court,  and  no  statutory  authority  is  necessary  for  its  exercise. 

If  a  board  or  officer  deprives  a  citizen  of  a  legal  right,  to  which  he  is  clearly 
entitled,  and  the  citizen  has  no  right  of  appeal  or  other  adequate  remedy,  the 
proper  court  will  review  the  action  and  see  that  justice  is  done  and  legal  rights 
preserved.  The  ride  is  well  expressed  in  Spelling  on  Injunctions  and  Other  Extra- 
ordinary Remedies,  2d  Ed.,  sec.  1433:  "But,  while  the  action  of  an  officer  clothed 
with  a  discretion  is  not  reviewable,  if  exercised  on  matters  left  to  his  discretion, 
yet  his  judgment  as  to  the  extent  of  his  discretion  under  the  law,  and  the  mat- 
ters on  which  it  may  be  exercised,  are  reviewable  on  mandamus;  and  where  a 
discretion  is  abused,  and  made  to  work  injustice,  it  may  be  controlled  by  man- 
damus." 

The  answer  of  the  board  totally  failed  to  set  forth  any  legal  justification  for 
its  refusal  to  grant  the  relator  a  license.  The  rules  and  regulations  of  the  board 
were  its  sole  defense.  As  the  court  has  observed,  this  was  insufficient.  The 
relator  had  complied  with  all  the  requirements  of  the  law  and  the  board  had  no 
discretion  left  in  the  premises.  It  was  its  duty  to  have  acted  favorably  on  the 
application.  Refusing  to  do  so,  the  relator  availed  himself  of  the  only  remedy 
afforded  him,  and  the  court  below  should  have  sustained  the  relator's  demurrer 
to  the  board's  answer  to  his  petition  and  issued  the  writ  of  mandamus  he  asked 
for  to  compel  the  board  to  grant  him  a  license  to  practice  medicine  and  surgery 
in  the  District  of  Columbia. 


INDICTMENT   WHERE   PRACTICING    MEDICINE    IS    DEFINED 

Blaloch  v.  State,  112  Ga.  338;  37  S.  E.  361 

1900 

Section  1477  of  the  Political  Code  of  Georgia  defines  what  persons  shall  prac- 
tice medicine  in  that  state.  Section  1478  declares:  "For  the  purpose  of  this 
chapter,  the  words  'practice  medicine'  shall  mean,  to  suggest,  recommend,  pre- 
scribe or  direct,  for  the  use  of  any  person,  any  drug,  medicine,  appliance,  appar- 


273 

atus.  or  other  agency,  whether  material  or  not  material  for  the  cure,  relief,  or 
palliation  of  any  ailment  or  disease  of  the  mind  or  body,  or  for  the  cure  or  relief 
of  any  wound,  fracture,  or  other  bodily  injury  or  deformity,  after  having  received 
or  with  the  intent  of  receiving  therefore,  either  directly  or  indirectly,  any  bonus, 
gift  or  compensation."  The  indictment  charged  the  accused  with  the  oll'en-e  of 
a  misdemeanor,  "for  that  the  said  0.  C.  Blalock,  on  the  24th  day  of  August,  in 
the  year  1000,  in  the  county  aforesaid,  did  then  and  there  unlawfully  and  with 
force  and  arms  practice  medicine,  without  then  and  there  being  authorized  to  do 
so  either  by  diploma  from  an  incorporated  medical  college,  medical  school,  or 
university,  nor  after  having  attended  one  or  more  full  terms  at  a  regularly  char- 
tered medical  college,  having  been  in  the  active  practice  of  medicine  since  the 
year  1806,  nor  being  then  and  there  authorized  to  practice  medicine  in  1866,  nor 
having  been  then  and  there  licensed  by  the  medical  board;  contrary  to  the  laws 
of  said  state,"  etc.  Now,  this  indictment  the  Supreme  Court  of  Georgia  holds. 
not  only  substantially  complied  with  the  provisions  of  sections  485  and  4sti  of 
the  Penal  Code  of  Georgia,  on  which  it  was  based,  but  was  not  defective  in  not 
alleging  that  the  accused  did  illegally  practice  medicine  with  the  intent  of  receiv- 
ing, or  after  having  received,  directly  or  indirectly,  any  gift,  bonus,  or  compen- 
sation for  his  services  in  prescribing,  suggesting,  or  recommending  any  drug, 
medicine,  appliance,  apparatus,  or  other  agency  for  the  cure  of  disease.  It  says 
that  this  indictment  charged  the  accused  with  unlawfully  practicing  medicine. 
What  "practicing  medicine"  means  is  defined  by  section  1478  above  quoted.  Every 
person  is  supposed  to  know  the  law.  Therefore,  the  accused  was  presumed  to 
have  known  what  was  meant  by  the  term  "practice  medicine"  under  the  state 
code.  In  other  words,  the  court  holds  that  since,  by  statutory  definition,  the 
words  "practice  of  medicine"  embrace  the  idea  of  exacting  compensation,  an 
indictment  charging  that  the  accused  did  unlawfully  "practice  medicine,"  and 
expressly  negativing  his  having  any  of  the  qualifications  essential  to  the  lawful 
practice  of  medicine  set  forth  in  section  1477  of  the  Political  Code,  is  good  in 
substance,  and  will  support  a  conviction,  although  there  be  no  allegation  that 
the  accused  received  or  intended  to  receive  compensation. 


EVIDENCE    OF   RIGHT   TO   PRACTICE 

Trentham  v.  Waldrop,  119  Ga.  152;  ^5  S.  E.  988 

1903 

Where  a  physician  brings  an  action  against  a  patient  to  recover  for  pro- 
fessional services,  and  alleges  that  he  is  a  duly 'licensed,  practicing  physician,  and 
this  allegation  is  denied  by  the  party  sued,  a  certificate  of  the  clerk  of  the  supe- 
rior court  of  the  county  of  his  residence,  showing  that  such  physician  duly  regis- 
tered prior  to  the  year  1895,  in  compliance  with  the  provisions  of  section  1479 
of  the  civil  code,  is  prima  facie  evidence  of  his  right  to  practice  medicine.  Where, 
in  such  an  action,  it  appears  that  the  party  sued  was  a  married  woman,  having 
a  separate  estate,  and  the  physician  testifies  that  she,  before  the  services  were 
rendered,  agreed  to  be  herself  responsible  for  payment  for  them,  while  the  party 
sued  pleads  and  testifies  that  she  made  no  such  special  contract  or  promise, 
there  is  such  a  conflict  in  the  evidence  as  should  be  submitted  to  the  jury,  and 
it  is  error  to  direct  the  jury  to  find  in  favor  of  the  party  sued  on  this  issue. 


FAILURE  TO  REGISTER  PREVENTS  RECOVERY  FOR  SERVICES 

Murray  v.  Williams,  121  Ga.  63;  J/8  S.  E.  686 

1904 

The  only  question  presented  for  adjudication  in  this  case  was  whether  a  phy- 
sician who  has  registered,  as  required  by  the  statute,  in  the  county  of  his  former 
residence  in  the  state  of  Georgia  can,  after  his  removal  into  another  county  in 
the  state  to  reside  and  practice  his  profession,  recover  for  professional  services 
rendered  by  him  in  the  latter  county  before  he  has  registered  therein.     The  code 


274 

provides  that :  "Every  person  lawfully  engaged  in  the  practice  of  medicine  within 
this  state,  before  commencing  to  practice,  shall  register  in  the  office  of  the  clerk 
of  the  superior  court  of  the  county  wherein  he  resides  and  is  practicing,  or 
intends  to  commence  the  practice  of  medicine,  in  a  book  to  be  kept  for  the  pur- 
pose by  said  clerk,  his  name,  residence  and  place  of  birth,  together  with  his 
authority  for  practicing  medicine.  The  person  so  registering  shall  subscribe  or 
verify,  by  oath  or  affirmation,  before  a  person  duly  qualified  to  administer  oaths 
under  the  laws  of  this  state,  an  affidavit  containing  such  facts,  and  whether  such 
authority  is  by  diploma  or  license,  and  the  date  of  the  same,  and  by  whom 
granted,  which  shall  be  exhibited  to  the  county  clerk  before  the  applicant  shall 
be  allowed  to  register. — Political  Code  of  1895,  Sec.  1479.  "Any  such  registered 
physician  in  this  state,  who  may  change  his  residence  from  one  county  into 
another  county  in  this  state,  shall  register  within  the  clerk's  office  of  the  county 
to  which  he  removes  and  wherein  he  intends  to  reside  and  to  practice  medicine, 
as  provided  in  the  preceding  section." — Pol.  Code,  1895,  Sec.  1480.  "Any  person 
who  shall  fail  to  register  or  who  shall  practice  medicine  or  surgery  in  violation 
of  the  provisions  of  the  Civil  Code,  shall  be  guilty  of  a  misdemeanor." — Penal 
Code  of  1895,  Sec.  485.  These  sections  of  the  code  are  intended  to  protect  the 
public  against  incompetent  and  unqualified  practitioners  of  medicine,  and  are 
not  for  raising  revenue,  and  are,  therefore,  prohibitory.  One  who  practices  med- 
icine without  having  registered  as  the  code  requires  cannot  recover  for  his  serv- 
ices. The  court  holds  that  a  physician  who  has  failed  to  register  in  compliance 
with  the  provisions  of  sections  1479  and  1480  of  the  Political  Code  of  1895  can- 
not recover  for  professional  services  rendered  by  him,  and  that  the  judgment  of 
the  trial  judge,  who  decided  contrary  to  the  views  herein  expressed,  must  be 
reversed. 


COMPETENCY  OF  WITNESSES 

Macon  Railway  &  Light  Co.  v.  Mason,  123  Ga.  773;  51  8.  E.  569 

1905 

Regarding  the  competency  of  a  witness,  the  court  holds  that  had  he  been 
licensed  under  the  laws  of  that  state  to  practice  medicine,  he  would  have  been , 
competent  to  testify  as  an  expert  witness  on  the  fact  being  made  to  appear  that 
he  was  a  licensed  physician.  But,  generally,  nothing  more  is  required  to  entitle 
one  to  give  testimony  as  an  expert  than  that  he  has  been  educated  in  the  par- 
ticular trade  or  profession.  Knowledge  gained  by  consistent  and  close  study  of 
medical  works  renders  one  competent  to  testify  as  an  expert  concerning  the  mat- 
ters of  which  he  has  thus  learned.  It  is  not  essential  that  he  should  be  actively 
engaged  in  the  practice  of  medicine.  Nor  is  it  essential  that  one  who  really  has 
a  scientific  education  on  the  subject  should  be  a  graduate  of  any  medical  college, 
or  have  a  license  to  practice  from  any  medical  board.  What  he  knows  is  what 
really  qualifies  him  to  ec press  an  opinion  as  an  expert,  and  a  diploma  or  license 
is  only  important  as  furnishing  satisfactory  evidence  of  his  competency  as  a  wit- 
ness. Accordingly,  a  person  who  is  neither  a  physician  nor  surgeon  can  express 
an  opinion  on  a  medical  question,  when  the  matter  inquired  about  lies  within 
the  domain  of  the  profession  or  calling  which  the  witness  pursues.  But  not  being 
a  licensed  practitioner,  it  is  necessary  to  lay  the  proper  foundation  showing  him 
to  be  an  expert  as  to  the  subjects  on  which  he  proposes  to  express  his  opinion. 
The  court  also  holds  that  the  wife  of  an  injured  party  is  not,  because  of  the 
marital  relation  existing  between  them,  and  the  policy  of  the  law  to  preserve 
inviolate  the  confidential  communications  between  husband  and  wife,  incompetent 
to  testify  as  to  the  nature  of  the  injury  received  by  him,  and  its  effect  on  his 
physical  condition,  when  there  is  nothing  to  indicate  that  her  knowledge  on  the 
subject  was  gained  because  of  any  confidence  which  he  reposed  in  her  as  his 
wife.  The  wife  may  testify  to  symptoms  which  she  has  observed  indicating  that 
her  husband  suffered  from  headache,  but  she  should  not  be  permitted  to  generalize 
or  state  any  bare  conclusion  on  her  observation  of  others  who  had  headache,  she 
not  professing  to  be  an  expert. 


275 

"MAGIC  HEALING"  NOT  THE  PRACTICE  OF  MEDICINE 

Bennett  v.  Ware,  J,  Ga.  App.  203;  61  8.  E.  546 

1908 

The  plaintiff  was  arrested  on  a  warrant  sworn  out  by  the  defendant  charging 
the  plaintiff  with  practicing  medicine  without  a  license,  in  violation  of  the  stat- 
utes of  that  state.  On  a  preliminary  investigation  the  plaintiff  was  discharged, 
and  thereupon  he  brought  this  suit  against  the  defendant  for  malicious  prosecu- 
tion and  false  imprisonment.  In  his  petition  he  alleged  that  at  the  time 
of  his  arrest  and  incarceration  in  the  common  jail  he  was  engaged  in  the  "pro- 
fession of  healing  diseases  without  the  use  of  medicine,  commonly  and  better 
known  as  a  'magic  healer'";  that  he  had  healed  the  sick  without  the  use  of 
medicine  in  any  form  or  manner  whatever  by  placing  his  hands  on  that  portion 
of  the  body  which  was  affected  by  pain;  that  this  gift  or  magic  power  was  given 
him  direct  from  the  Lord;  that  he  made  no  charge  for  his  services,  but  accepted 
such  compensation  as  the  gratitude  of  his  patients  induced  them  to  offer  volun- 
tarily; that,  as  a  result  of  his  arrest  and  prosecution  for  practicing  medicine 
without  a  license,  he  suffered  great  humiliation  and  mortification,  lost  two  days' 
compensation  in  "gifts,"  amounting  to  $25  per  day,  was  put  to  an  expense  of 
$15  in  employing  a  lawyer  to  defend  him  against  the  untruthful  accusation  and, 
in  fact,  "lost  almost  his  entire  practice";  that  his  prosecution  was  malicious  and 
without  probable  cause;  and  that  he  had  been  damaged  in  the  sum  of  $5,000.  A 
demurrer  was  filed  to  this  petition  on  the  ground  that  the  allegations  showed  that 
the  plaintiff  was  in  fact  practicing  medicine  and  suggesting  remedies  for  the  sick 
and  afflicted,  and  receiving  compensation  therefore,  without  complying  with  the 
statutes  of  the  state  regulating  the  practice  of  medicine,  and  therefore  that  there 
was  probable  cause  for  his  arrest  and  prosecution.     The  demurrer  was  sustained. 

The  direct  question  for  determination  was  whether  the  plaintiff,  under  the 
facts  set  out  in  his  petition,  was  engaged  in  the  practice  of  medicine  as  defined 
by  the  statutes  of  Georgia.  By  virtue  of  its  police  power,  the  state  has  enacted 
legislation  to  protect  the  public  against  unfit  and  incompetent  practitioners  of 
medicine,  and  to  prevent  the  results  of  malpractice. 

In  construing  these  statutes  it  is  apparent  that  the  law  of  this  state  recog- 
nizes only  three  systems  or  schools  of  medicine — the  "regular,"  the  homeopathic 
and  the  eclectic  schools.  It  is  impossible  for  one  who  desires  to  practice  any 
other  system  to  do  so  in  this  state  as  a  practitioner  of  medicine,  because  under 
the  law  he  cannot  procure  a  license.  In  other  words,  the  law  only  proposes  to 
grant  a  license  to  practice  medicine  to  the  allopath,  the  homeopath  or  the  eclec- 
tic. It  is  true  the  statute  provides  that,  "if  the  applicant  desires  to  practice  a 
system  not  represented  by  any  of  the"  three  boards,  "he  may  elect  for  himself 
the  board  before  which  he  will  appear  for  examination";  but  this  is  a  barren 
privilege,  for  none  of  the  three  boards  can  or  will  examine  any  applicant  except 
one  who  has  a  diploma  from  a  regular  medical  college,  or  who  proposes  to  prac- 
tice one  of  the  three  systems.  It  would  be  absurd  to  say  that  one  who  prac- 
ticed the  healing  art  by  magnetism,  Eddyism,  spiritualism,  hypnotism,  mesmerism 
or  any  other  form  for  the  treatment  of  disease  based  on  a  supernatural  agency 
would  be  entitled  to  be  examined  by  any  one  of  the  medical  boards  of  the  state; 
for  the  science  of  medicine  is  based  on  natural  agencies.  The  court,  therefore, 
concludes  that  only  those  who  propose  to  practice  medicine  by  one  of  the  schools 
or  systems  recognized  by  the  statutes  of  the  state  are  required  to  have  a  license. 

It  was  said  that  section  1478  of  the  Political  Code  of  Georgia  of  1895  under- 
took to  define  the  practice  of  medicine,  and  that  this  definition  embraced  the  par- 
ticular practice  of  the  plaintiff.  According  to  his  statement,  his  method  con- 
sisted simply  in  laying  his  hands  on  the  sick  at  the  point  or  place  of  pain  or 
disease,  and  the  healing  which  followed  was  by  a  direct  divine  agency.  Do  the 
words  in  the  statutory  definition  "or  other  agency,  whether  material  or  not  mate- 
rial, for  the  cure,  relief  or  palliation  of  any  ailment  or  disease  of  the  mind  or 
body"  embrace  an  agency  of  this  character?  It  may  be  conceded  that  the  words 
"material  or  not  material"  are  sufficiently  broad  to  include  at  least  every  human 
or  natural  agency.     But  the  court  cannot  believe  that  the  legislature  intended 


276 

to  include  in  the  practice  of  medicine  what  may  be  called  psychotherapeutics,  or 
any  form  of  the  treatment  of  the  sick  which  makes  faith  the  curative  agency. 
The  words  "other  agency,"  "material  or  not  material,"  should  be  construed  in 
obedience  to  the  maxim,  "Noscitur  a  sociis"  (it  is  known  from  its  associates), 
and  the  meaning  of  the  word  "agency"  must  be  limited  by  the  associated  words 
"drug,  medicine,  appliance,  apparatus."  In  other  words,  the  word  "agency,"  even 
as  qualified  by  the  words  "material  or  not  material,"  was  intended  by  the  legis- 
lature to  mean  a  substance  of  the  general  character  of  a  drug  or  medicine,  or 
surgical  apparatus  or  appliance,  the  obvious  purpose  being  to  protect  society 
against  the  evils  which  might  result  from  the  use  of  drugs  and  medicines  by  the 
ignorant  and  unskilful. 

The  purpose  of  the  act  is  clearly  indicated  by  its  title,  "to  regulate  the  prac- 
tice of  medicine."  It  was  not  intended  to  regulate  the  practice  of  mental  thera- 
peutics, or  to  embrace  psychic  phenomena.  These  matters  lie  within  the  domain 
of  the  supernatural.  Practical  legislation  has  nothing  to  do  with  them.  If  they 
are  a  part  of  a  man's  faith,  the  right  to  their  enjoyment  cannot  be  abridged  or 
taken  away  by  legislation. 

However  the  so-called  wisdom  of  this  world  may  regard  these  things,  it  can- 
not be  denied  that  long  before  the  Saviour  told  His  disciples  that  in  His  name 
they  should  heal  the  sick  and  prevent  all  manner  of  diseases  by  the  laying  on 
of  hands,  the  practice  of  healing  by  means  of  prayers,  ceremonies,  laying  on  of 
hands,  incantations,  hypnotism,  and  other  forms  of  psychotherapeutics  existed. 
To  the  iconoclast  who  denounces  these  things  as  the  figments  of  superstition,  or 
to  the  orthodox  physician  who  claims  for  his  system  all  wisdom  in  the  treat- 
ment of  human  malady,  the  court  commends  the  injunction  of  Him  who  was 
called  "the  Good  Physician,"  when  told  that  others  than  His  followers  were  cast- 
ing out  devils  and  curing  diseases :  "Forbid  them  not."  What  matters  the  sys- 
tem, if,  in  fact,  devils  are  cast  out,  and  diseases  are  healed? 

The  court  deduces:  That  the  practice  of  medicine,  defined  by  the  code,  is 
limited  to  prescribing  or  administering  some  drug  or  medicinal  substance,  or  to 
those  means  and  methods  of  treatment  for  prevention  of  disease  taught  in  med- 
ical colleges  and  practiced  by  medical  practitioners;  that  the  purpose  of  the  act 
regulating  the  practice  of  medicine  was  to  protect  the  public  against  ignorance 
and  incompetency  by  forbidding  those  who  were  not  educated  and  instructed  as 
to  the  nature  and  effect  of  drugs  and  medicine,  and  for  what  diseases  they  could 
be  administered,  from  treating  the  sick  by  such  remedial  agencies;  that  the  law 
is  not  intended  to  apply  to  those  who  do  not  practice  medicine,  but  who  believe, 
with  Dr.  Holmes,  that  "it  would  be  good  for  mankind,  but  bad  for  the  fishes,  if 
all  the  medicines  were  cast  into  the  sea,"  nor  to  those  who  treat  the  sick  by 
prayer  or  psychic  suggestion. 

The  court  is  clear  that  the  plaintiff  was  not  a  practitioner  of  medicine  in  the 
sense  of  the  statute  or  in  the  popular  sense;  and  the  fact  that  he  received  fees 
and  compensation  for  treatment  in  the  shape  of  gifts  could  not  make  what  would 
otherwise  not  be  the  practice  of  medicine  a  violation  of  the  statute  regulating 
such  practice,  for  it  must  be  apparent  that,  if  the  mere  laying  on  of  hands 
amounts  to  the  practice  of  medicine  in  any  sense,  it  is  so  without  reference  to 
fee  or  reward. 

But  while  the  court  holds  that,  under  the  allegations  of  the  petition,  the 
plaintiff  was  not  engaged  in  the  practice  of  medicine,  and  therefore  was  not  vio- 
lating the  law  regulating  such  practice  in  this  state,  it  does  not  think  that  he 
was  entitled  to  recover  damages  for  malicious  prosecution  from  the  defendant 
physician  who  swore  out  the  warrant  against  him.  The  question  of  law  involved 
was  sufficiently  in  doubt,  in  its  application  to  his  practice,  fully  to  warrant  a 
legal  investigation  of  the  question;  and,  in  taking  out  the  warrant,  the  defendant 
was  fully  justified  by  the  existence  of  the  probable  cause;  his  act  was  without 
malice,  and  in  behalf  of  the  public.  Besides,  the  court  thinks  that  the  practice 
of  the  plaintiff,  while  not  in  Adolation  of  the  statute  regulating  the  practice  of 
medicine,  was  presumptively  an  imposition  on  the  credultiy  of  the  public,  which 
might  in  its  consequences  result  in  much  injury,  and  that  he  was  exercising  a 
pretended  power  of  magnetic  healing  to  the  deception  of  the  people,  and  was 
obtaining  their  money  in  the  shape  of  gifts  under  false  pretenses,  and  the  court 
does  not  think  that  the  law  should  permit  him  to  recover  damages  resulting  from 
a  legitimate  effort  on  the  part  of  a  citizen  to  test  the  legality  of  his  practice. 


277 

The  court  therefore  affirms  the  judgment  of  the  court  below  in  sustaining  the 
demurrer  and  dismissing  tlie  plaintiff's  petition. 


ONLY    ONE    REGISTRATION    REQUIRED 

Jones  v.  State,  60  S.  E.  815 
1910 

An  accusation  was  filed  against  W.  F.  Jones  in  the  city  court  of  Albany, 
charging  him  with  practicing  without  a  license.  This  accusation  was  demurred 
to  on  the  ground  that  it  set  forth  no  crime  under  the  law,  and  the  case  is  before 
this  court  on  exceptions  to  the  judgment  overruling  the  demurrer. 

The  accusation  states  that  the  accused  did  practice  medicine,  and  charge  and 
receive  pay  for  doing  so,  without  first  registering  with  the  clerk  of  Dougherty 
county  superior  court.  It  fails  to  allege  that  Dougherty  county  was  the  county 
wherein  he  resided.  It  is  plain  that  if  the  county  of  his  residence  was  some- 
where else,  and  in  that  county  he  had  duly  registered  as  required  by  law  before 
commencing  the  practice  of  medicine,  he  could,  under  such  registration,  have 
practiced  medicine  in  Dougherty  county.  In  other  words,  the  accusation  wholly 
fails  to  set  forth  the  essential  elements  Oi  the  offense,  to  wit.  the  failure  to 
register  in  the  county  of  the  physician's  residence.  For  this  reason,  the  accusation 
was  defective,  and  should  have  been  quashed  on  demurrer.  It  is  not  the  intention 
of  the  statute  to  require  the  practitioner  of  medicine  to  register  in  every  county 
where  he  may  practice  medicine.  It  only  requires  him  to  register  in  the  office 
of  the  clerk  of  the  superior  court  of  the  county  wherein  he  resides  at  the  time 
he  commences  the  practice  of  medicine;  and  in  the  accusation  it  should  be  affirma- 
tively stated  that  the  accused  had  failed  to  register  in  the  county  of  his  resi- 
dence before  he  commenced  the  practice  of  medicine. 


RIGHTS  UNDER  LATER,  OF  PRACTITIONER  UNDER  FORMER,  LAW 

State  v.  Cooper,  11  Idaho  219;  81  Pac.  37Jf 
1905 
The  Supreme  Court  holds  that  under  the  provisions  of  section  5  of  what  is 
known  as  the  "Medical  Law  of  1899,"  the  board  of  medical  examiners  are  not 
empowered  to  call  on  applicants  for  a  license  for  their  diplomas,  who  were  engaged 
in  the  practice  of  their  profession  under  the  law  of  1887.  Where  it  is  shown 
that  an  applicant  for  a  license  to  practice  medicine  and  surgery  was  a  resident 
of  the  state,  engaged  in  the  practice  of  his  profession  under  the  provisions  of 
the  law  of  1887,  and  had  complied  with  all  the  provisions  of  the  law  of  1899, 
the  court  holds  that,  in  case  the  board  of  medical  examiners  refused  to  issue  his 
license,  it  was  not  criminal  in  him  to  pursue  his  profession.  It  was  urged  in 
this  case  by  counsel  for  the  state  that  the  applicant  should  have  resorted  to  his 
civil  remedy  by  an  appeal  from  the  action  of  the  board  of  medical  examiners  to 
the  district  court,  and  there  had  the  action  of  the  board  reviewed.  It  appeared 
that  the  board  called  on  him  for  his  medical  diploma,  which  he  sent  to  the  board, 
who  thereafter  informed  him  that  they  did  not  and  would  not  recognize  the  insti- 
tution giving  it  as  one  having  authority  to  issue  a  diploma  to  a  doctor  of  med- 
icine. The  court  says  that  when  he  received  this  notice  he  had  the  right  to 
appeal  from  the  action  of  the  board,  or  he  coidd  treat  their  action  as  an  infringe- 
ment on  his  rights  under  the  laws  of  1887  and  1899.  The  statute  of  1899  did 
not  authorize  the  board  to  demand  of  him  his  diploma.  He  had  furnished  them 
all  that  they  were  entitled  to  under  the  law.  They  could  not  ignore  the  plain 
provisions  of  the  1899  law,  and  thereby  make  a  criminal  of  a  citizen  of  the  state 
engaged  in  a  legal  and  lawful  business.  If  the  board  of  medical  examiners  could 
withhold  a  license  from  an  applicant  in  this  manner  until  he  could  appeal  to 
the  courts  for  redress,  making  a  criminal  of  him  every  time  he  prescribed  for 
or  visited  a  patient,  they  could  not  only  deprive  him  of  valuable  property  rights, 
but  ruin  him  in  his  profession,  and  brand  him  as  a  criminal.  This  is  neither 
the  spirit  nor  intent  of  the  law. 


278 

RELATIVE   POWERS   OF  EXAMINING  BOARD   AND   COURTS 
Raaf  v.  State  Board  of  Medical  Examiners,  11  Idaho  101 ;  8//  Pac.  33 

1906 

The  Supreme  Court  holds  that,  under  the  act  approved  March  3,  1899,  known 
as  the  "State  Medical  Law,"  the  state  board  of  medical  examiners,  in  the  exam- 
ination of  applicants  for  a  license  to  practice  medicine  and  surgery,  is  required 
to  exercise  judgment  and  discretion  in  granting  or  refusing  licenses  to  such  appli- 
cants, and  in  so  doing  exercises  quasi  judicial  functions.  The  state  medical  law 
contains  no  provision  granting  the  right  of  appeal  from  the  action  of  the  board 
of  examiners  in  refusing  a  license  to  an  applicant,  but  by  the  terms  of  section 
9  of  the  act  it  is  provided  that  the  action  of  the  board  in  refusing  to  grant 
a  license  under  the  provisions  thereof  may  be  reviewed  by  the  district 
court  on  certiorari,  as  it  is  called,  provided  proceedings  therefore  are 
instituted  within  ten  days  after  notice  of  such  refusal.  By  conferring  the  right 
to  have  the  action  of  the  board  in  refusing  to  grant  a  license  reviewed,  as  pro- 
vided in  section  9  of  the  act,  the  legislature  has  indicated  an  intention  to  limit 
and  confine  the  authority  and  jurisdiction  of  the  courts  in  considering  the  action 
of  the  board  to  the  procedure  and  scope  of  investigation  and  inquiry  usually  and 
ordinarily  pursued  and  exercised  by  the  courts  in  the  issuance  and  consideration 
of  writs  of  review.  The  legislature  has  provided  for  a  board  of  experts  learned 
in  medicine  and  surgery  for  the  purpose  of  examining  applicants  for  license  to 
practice  within  the  state,  and  the  language  of  the  medical  act  and  the  purposes 
and  objects  thereof  preclude  any  inference  that  the  legislature  ever  intended  that 
a  disappointed  applicant  might  apply  to  the  court  and  there  have  his  answers 
reexamined,  marked,  graded  and  passed  on  as  to  their  correctness  by  the  court. 
The  courts  are  open  to  compel  action  by  the  state  board  of  medical  examiners 
when  they  fail  or  refuse  to  act,  and  to  review  their  authority  where  they  have 
assumed  to  exercise  powers  not  conferred;  but  the  courts  will  not  review  and 
reexamine  matters  in  which  the  board  is  called  on  to  exercise  judgment  and  dis- 
cretion, and  perform  quasi  judicial  functions  in  reference  thereto. 

The  legislature,  the  court  says,  had  in  view  the  protection  of  the  health  of 
the  people  of  the  state,  and,  as  a  means  to  effect  that  end,  determined  that  all 
persons  thereafter  intending  to  enter  the  practice  of  medicine  and  surgery  should 
be  examined  as  to  their  fitness,  learning  and  qualifications  by  a  board  of  experts 
learned  in  the  science  and  art  of  that  particular  profession.  Is  it  at  all  probable 
that  the  legislature  ever  intended  that  a  disappointed  applicant  might  apply  to 
the  court  and  there  have  his  answers  reexamined  and  passed  on  by  one  unlearned, 
perhaps,  in  a  single  one  of  the  branches  of  this  science?  Courts  are  neither 
required  nor  expected  to  be  experts  in  therapeutics,  gynecology,  toxicology,  diag- 
nosis, etc.,  and  for  them  to  undertake  to  examine  and  grade  physicians  on  such 
branches  would  be  an  unwarranted  assumption  of  jurisdiction.  The  layman, 
wandering  among  the  puzzling  mazes  of  materia  medica  and  the  speculative 
bewilderments  of  pathology,  might  with  equal  assurance  and  conscientiousness 
grade  an  applicant  who  had  correctly  answered  all  the  questions  at  10  per  cent., 
and  one  who  had  correctly  answered  none  at  100  per  cent.  As  to  the  plaintiff's 
contention  that,  since  he  had  introduced  in  evidence  what  he  claimed  were  cor- 
rect text-book  answers  to  the  questions,  the  court  could  have  a  standard  by 
which  to  examine  and  grade  answers,  the  court  says  that  this  would  hold  good 
so  long  as  the  answers  of  the  applicant  might  be  in  the  same  language  as  the 
answers  which  were  shown  to  be  correct,  but  the  moment  the  applicant's  answer 
branched  out  into  different  language,  and  his  own  mode  of  expression,  a  court, 
not  proficient  in  the  science  of  a  profession  characterized  by  abundant  technical 
language  and  phraseology,  would  encounter  perplexities  and  difficulties  unnum- 
bered. 

Again,  the  court  says  that  there  are  no  set,  fixed  or  inviolable  rules  by  which 
such  a  board  must  determine  whether  a  question  has  been  answered  correctly  or 
incorrectly.  Knowledge  must  be  brought  to  bear  and  judgment  must  be  exer- 
cised. The  science  of  medicine  is  not  such  an  exact  and  immutable  science  but 
that  those  who  are  eminent  and  learned  in  the  profession  often  differ  in  a  diag- 
nosis, or  as  to  what  would  be  an  absolutely  correct  answer  to  a  given  question. 


279 

It  is  a  progressive  science.  This  is  one  of  the  chief  considerations  for  requiring 
such  examinations  to  be  conducted  by  those  who  arc  proficient  and  learned  in 
the  profession.  If  the  board  should  fail  to  act  when  it  is  its  duty  to  act,  tin- 
courts  are  open  to  enforce  action.  If  it  acts  without  jurisdiction,  the  courts  are 
open  to  inquire  into  and  review  the  authority  they  have  assumed  to  exercise. 
The  court  cannot,  however,  under  the  medical  law  of  Idaho,  be  converted  into  a 
board  for  the  examination  of  applicants  for  a  license  to  practice  medicine  and 
surgery.  Questions  of  bias  or  prejudice  existing  in  the  mind  of  any  member  of 
the  board  against  an  applicant  or  of  incompetency  of  a  member,  or  of  errors  and 
mistakes  of  judgment  or  unfairness  in  marking  and  grading  an  applicant's  papers 
are  matters  that  may  be  properly  addressed  to  the  executive  authority  from 
which  they  receive  their  appointment,  who  may  take  such  action  thereon  as  the 
best  interests  of  the  public  demand. 


MUST   BE   ACTUALLY   ENGAGED   IN   PRACTICE   TO   BE   EXCEPTED 
Sherburne  et.  al.  v.  Board  of  Dental  Examiners,  13  Idaho  105;  SS  P.  762 

1907 

The  respondents  commenced  this  action  in  the  district  court  to  secure  a  writ 
of  mandate  compelling  the  dental  board  of  examiners  to  register  the  respondents 
and  issue  to  them  certificates  entitling  them  to  practice  dentistry  within  this 
state.  The  board  answered  the  complaint,  and  the  plaintiffs  demurred  to  the 
answer,  and  the  demurrer ■  was  sustained,  and  the  peremptory  writ  was  there- 
upon issued.     This  appeal  is  from  the  judgment  and  order. 

The  application  for  registration  was  made  under  the  provisions  of  the  act 
of  February  16,  1899,  which  went  into  effect  on  the  16th  of  February,  1899. 
Plaintiffs  allege  that  they  came  into  the  state  of  Idaho  on  the  8th  of  February, 
1899,  and  opened  a  dental  office  at  the  city  of  Idaho  Falls,  and  that  on  the  16th 
of  February  they  made  application  in  accordance  with  the  provisions  of  section 
4  of  the  act  for  registration  and  the  issuance  of  certificates  to  them,  and  that 
the  board  refused  to  register  them  or  to  issue  to  them  certificates.  The  board 
answered,  denying  that  the  plaintiffs  were  practicing  dentistry  within  this  state 
on  February  16,  1899,  or  that  they  had  been  doing  so  prior  to  that  date.  The 
board  admits  that  the  applicants  filed  the  oath  and  application  required  by  law. 
The  board  alleged  that  after  receiving  the  affidavits  and  applications  of  the  peti- 
tioners they  made  an  investigation  and  examined  witnesses  to  ascertain  whether 
the  applicants  were  in  fact  engaged  in  the  practice  within  the  state  of  Idaho  at 
the  time  the  dental  law  went  into  effect,  and  that  from  their  investigation  and 
examinations  they  ascertained  that  they  were  not.  It  is  further  alleged  that 
by  arrangement  "with  one  Edward  Beaudette,  who  was  in  Boise  City  prior  to 
the  16th  day  of  February,  1899,  the  plaintiffs,  who  were  then  actually  practicing 
their  profession  in  the  town  of  Anaconda,  state  of  Montana,  were  notified  by 
the  said  Beaudette  that  the  governor  of  the  state  of  Idaho  would  sign  and 
approve  said  law  on  or  about  the  said  16th  day  of  February,  1899,  and  that  upon 
receiving  said  information,  the  plaintiffs  came  to  the  town  of  Idaho  Falls,  in 
the  state  of  Idaho,  in  attempting  to  make  it  appear  that  they  were  actually 
residing  in  the  state  on  that  date;  that  while  in  Idaho  Falls  on  said  16th  day 
of  February,  1899,  the  said  plaintiffs  were  informed  that  the  governor  of  Idaho 
had  approved  said  law;  that  they  immediately  executed  their  said  affidavits  set 
out  in  the  petition  of  the  plaintiffs  herein,  and  on  the  same  day  left  the  state, 
returning  to  Anaconda,  Mont.,  and  resumed  the  practice  of  their  profession  at 
said  place,  and  from  that  place  on  the  27th  of  April,  1899,  mailed  to  the  secre- 
tary of  said  state  dental  board  of  examiners,  the  said  affidavits  set  out  in  plain- 
tiffs' petition  herein;  and  defendants  state  upon  information  and  belief  that 
the  said  plaintiffs  never  returned  to  the  state  of  Idaho  until  in  the  summer  of 
1903."  The  trial  court  held  that  these  facts  did  not  constitute  any  defense  to 
the  plaintiffs'  action,  and  accordingly  sustained  a  demurrer  to  the  answer. 

Under  the  dental  law  every  person  who  was  actually  engaged  in  the  practice 
of  dentistry  within  this  state  at  the  time  the  same  went  into  effect  was  entitled 
to  be  registered  and  receive  a  certificate  to  that  effect,  upon  furnishing  the  board 


280 

a  written  statement,  verified  by  his  oath,  showing  that  he  was  in  fact  a  person 
entitled  to  practice  under  the  provisions  of  the  act.  All  other  persons  were 
required  to  pass  an  examination,  as  provided  by  section  5  of  the  act.  In  the 
case  of  applicants  for  registration  who  were  practicing  in  the  state  at  the  time 
the  law  went  into  effect,  the  board  had  no  duty  or  discretion  in  the  matter  of 
determining  the  qualifications  of  the  applicant.  The  law  deemed  every  person 
who  was  at  the  time  so  engaged  qualified  to  continue  the  practic"  and  impliedly 
authorized  him  to  do  so  on  furnishing  the  necessary  proof  within  three  months 
after  the  act  went  into  effect.  Furnishing  the  affidavit,  however,  to  the  effect 
that  an  applicant  was  entitled  to  registration  under  section  4,  supra,  was  not 
the  vital  and  decisive  fact  entitling  him  to  register.  That  was  only  intended 
as  written  evidence  of  the  actual  existence  of  the  fact  it  purported  to  show.  The 
vital  and  essential  fact  which  was  necessary  to  exist  was  that  the  applicant 
should  have  been  "engaged  in  the  practice  of  dentistry  in  this  state"  at  the  time 
of  the  passage  of  the  act.  If  he  was  not  in  fact  so  engaged,  an  affidavit  stating 
that  he  was  would  not  entitle  him  to  registration.  It  was  intended,  however, 
that  such  affidavit  should  constitute  sufficient  evidence  of  the  fact  to  justify  the 
board  in  registering  him  and  issuing  a  certificate  to  that  effect.  While  the 
board  was  not  in  so  many  words  given  the  power  to  make  investigation  and 
ascertain  whether  or  not  the  affidavit  was  true  or  false,  nevertheless  the  clear 
purpose  and  intent  of  the  entire  act  is  necessarily  an  implied  grant  of  such 
authority.  The  power  of  the  board  to  "carry  out  the  purposes  and  enforce  the 
provisions"  of  the  act,  and  the  clear  and  unmistakable  purposes  of  the  act  to 
prohibit  the  registration  of  any  one  who  was  not  in  fact  engaged  in  the  practice 
of  dentistry  at  the  time  the  act  went  into  effect,  are  a  clearly  implied  grant  of 
authority  to  ascertaiu  the  real  existence  of  the  facts  entitling  the  applicant  to 
register.  The  law  would  be  a  farce  if  it  were  intended  to  make  it  obligatory  on 
the  board  to  register  every  person  who  might  file  an  affidavit  stating  that  he 
was  engaged  in  the  practice  of  dentistry  on  the  16th  day  of  February,  1899,  if 
they  knew  that  affidavit  was  untrue.  The  fact  entitling  an  applicant  to  register 
under  this  provision  of  the  law  is  more  in  the  nature  of  a  jurisdictional  ques- 
tion, to  be  determined  by  the  board  before  registering  the  applicant,  than  one 
of  a  quasi  judicial  discretion.  If  he  was  not  engaged  in  the  practice  of  dentistry 
at  the  time  of  the  passage  of  the  act,  then  the  board  would  have  no  jurisdiction 
or  authority  to  register  him.  The  determination  of  this  fact  differs  widely  from 
the  determination  by  the  board  of  the  qualifications  of  an  applicant  who  takes 
an  examination,  because  in  the  latter  instance  the  board  must  bring  to  bear  its 
professional  knowledge  and  exercise  professional  and  official  discretion.  In  this 
case  the  fact  to  be  determined  does  not  require  any  professional  skill  or  knowl- 
edge, and  might  as  well  be  determined  by  any  other  board,  body,  or  officer. 

The  petitioners,  in  drawing  their  complaint,  recognized  the  necessity  of  plead- 
ing and  proving  that  they  were  engaged  in  the  practice  of  dentistry  within  this 
state  on  the  16th  of  February,  1899,  and  they  accordingly  pleaded  such  fact, 
and  they  also  pleaded  a  compliance  with  the  statute  in  furnishing  the  board 
evidence  showing  the  existence  of  the  essential  facts.  When  the  board  denied 
those  facts  and  pleaded  a  contrary  state  of  facts,  an  issue  was  joined,  and,  unless 
the  applicants  could  establish  in  a  legal  way  the  existence  of  the  facts  pleaded, 
they  were  not  entitled  to  a  writ  directing  their  registration.  We  have  no  doubt 
but  that  the  answer  of  the  defendant  board  was  sufficient  to  form  an  issue  on 
the  material  and  vital  allegations  in  the  complaint,  and  the  demurrer  should 
have  been  overruled,  and  the  facts  at  issue  have  been  determined.  Judgment  is 
reversed. 


DIPLOMA  OF  REGULARLY  CHARTERED  MEDICAL  SCHOOL  ENOUGH 

Yadney  v.  State  Board  of  Medical  Examiners,  112  Pac.  R.  1046 

1911 

This  is  an  original  application  to  this  court  for  a  writ  of  mandate  directed 
to  the  State  Board  of  Medical  Examiners,  requiring  them  to  issue  to  the  appli- 
cant a  license  to  practice  medicine  and  surgery.     The  plaintiff  is  a  graduate  of 


281 

the  Western  University  of  Chicago  and  Independent  Medical  College  of  Chicago; 
that  on  tlie  4tli  of  October,  1897,  he  established  an  office  and  residence  in  .Mor- 
row, and  lias  ever  since  continued  to  practice  medicine  and  surgery  in  that  town: 
that  before  he  began  the  practice  of  medicine  and  surgery,  he  filed  his  affidavit 
of  identity  and  his  diploma  with  the  county  recorder  of  Ada  county;  that  at  the 
time  of  the  passage  of  the  act  of  1809,  plaintiff  was  legally  engaged  in  the  actual 
practice  of  medicine  and  surgery  within  the  state  of  Idaho  under  the  provisions 
of  the  medical  act  of  1887,  that  in  the  month  of  June,  1899,  and  within  six 
months  after  the  medical  act  of  1899  went  into  effect,  applicant  made  applica- 
tion for  a  license  to  practice  medicine  and  surgery,  and  was  informed  that  the 
board  did  not  and  would  not  recognize  the  Independent  College  of  Chicago  as  one 
having  authority  to  issue  a  diploma  to  a  doctor  of  medicine. 

The  first  contention  made  by  the  board  is  that  under  the  laws  of  1887,  no 
person  was  entitled  to  practice  medicine  in  the  state  of  Idaho  who  had  not 
received  a  medical  education  and  who  had  not  received  a  diploma  from  a  regu- 
larly chartered  medical  school,  the  said  school  to  have  a  bona  fide  existence  at 
the  time  the  diploma  was  granted.  It  sufficiently  appears  from  the  petition 
that  the  plaintiff  was  lawfully  engaged  in  the  practice  of  medicine  and  surgery 
under  the  laws  of  1887,  when  the  medical  act  of  1899  was  passed.  If  the  plain- 
tiff was  lawfully  engaged  in  the  practice  of  medicine  and  surgery  at  the  time 
of  the  enactment  of  the  medical  law  of  1899,  the  question  is  whether  he  made  a 
sufficient  showing  to  the  board  under  that  law  to  require  it  to  issue  a  license 
to  him. 

It  appears  from  the  petition  that  the  plaintiff  was  legally  engaged  in  the 
actual  practice  of  medicine  and  surgery  under  the  medical  act  of  1887,  and  that  he 
made  a  proper  application  to  the  State  Medical  Examining  Board,  as  provided 
by  section  5  of  said  act,  and  if  the  facts  presented  in  his  affidavit  be  true,  the 
board  had  no  option  whatever  in  said  matter.  It  was  its  duty  to  issue  to  him  a 
license  to  practice  medicine  and  surgery. 

It  is  next  contended  that  the  plaintiff  had  a  plain,  speedy  and  adequate 
remedy  by  appeal  under  the  provisions  of  said  law  of  1899,  which  provided  that 
the  applicant  shall  have  the  right  to  have  the  action  of  the  board  reviewed  by 
the  district  court,  provided  proceeding  for  such  review  is  instituted  within  ten 
days  after  notice  of  such  refusal  upon  the  applicant.  But  this  court  has  already 
held  that  the  courts  will  not  review  and  reexamine  matters  in  which  the  board 
is  called  on  to  exercise  judgment  and  discretion  and  perform  quasi  judicial  func- 
tions in  relation  thereto;  but  will  compel  the  board  to  act  when  they  fail  or 
refuse  to  do  so,  and  will  review  their  proceedings  where  they  have  assumed  to 
exercise  powers  not  conferred.  Under  this  rule  the  petitioner  has  no  plain,  speedy 
and  adequate  remedy  at  law  by  appeal. 

Counsel  for  defendant  board  contend  that  the  complaint  is  insufficient,  because 
it  does  not  directly  allege  that  the  defendant  had  a  "medical  education."  Under 
the  law  of  1887,  a  diploma  from  some  regularly  chartered  medical  school  which 
had  a  bona  fide  existence  at  the  time  said  diploma  was  granted,  and  a  compliance 
with  the  provisions  of  the  law  was  proof  of  the  applicant's  having  received  a 
medical  education  and  all  of  the  evidence  that  the  statute  required  at  that  time 
of  that  fact.  That  being  true,  the  complaint  states  a  cause  of  action,  and,  if 
said  facts  are  true,  they  entitle  the  plaintiff  to  the  relief  prayed  for. 

The  plaintiff  alleges  in  his  complaint  all  of  the  facts  necessary  to  entitle 
him  to  a  license  from  the  State  Board  of  Medical  Examiners  to  practice  medicine 
in  this  state,  and  the  board  by  refusing  to  issue  a  certificate  to  him  refused  to 
perform  a  duty  imposed  on  it  by  the  medical  act  of  1899.  For  that  reason  the 
motion  to  quash  must  be  denied. 

The  answer  denies  matters  of  record  on  information  and  belief.  A  denial  on 
information  and  belief  of  matters  of  record  is  no  denial  at  all,  where  such  records 
are  accessible  to  the  defendant;  therefore  said  denials  do  not  make  an  issue  in 
the  case.  The  answer  denies  that  the  Independent  Medical  College  of  Chicago, 
from  which  plaintiff  held  a  diploma,  was  a  "reputable  college  of  medicine  in 
good  standing."  The  board  had  a  right  to  determine  that  question  under  the 
act  of  1899,  where  the  applicant  had  not  been  practicing  medicine  and  surgery 
under  the  act  of  1887;  but  when  the  applicant  had  been  practicing  under  the 
laws  of  1887,  and  made  application  under  the  fifth  section  of  the  act  of  1899 


282 

for  a  license,  the  board  had  no  authority  whatever  to  determine  whether  or  not 
the  diploma  under  which  the  applicant  had  been  practicing  was  issued  by  "a 
reputable  college  of  medicine  in  good  standing."  If  the  plaintiff  had  a  diploma 
from  a  regularly  chartered  medical  school  that  had  a  bona  -fide  existence  at  the 
time  the  diploma  was  granted,  that  was  all  that  was  necessary,  so  far  as  the 
diploma  was  concerned.  The  answer  admits  that  said  Independent  Medical  Col- 
lege was  a  regularly  chartered  medical  school  and  had  a  bona  fide  existence,  and 
avers  that  its  charter  was  revoked  in  the  year  1899  on  account  of  fraud.  Under 
the  admitted  facts  and  law,  the  board  had  no  authority  whatever  to  refuse  the 
applicant  a  license,  on  the  ground  that  the  medical  college  from  which  he  gradu- 
ated was  not  a  "reputable  college  of  medicine  in  good  standing."  Said  board 
avers  in  its  answer  that  it  did  not  and  would  not  recognize  said  Independent 
Medical  School  of  Chicago  as  one  having  authority  to  issue  a  diploma  to  a 
doctor  of  medicine,  and  avers  "that  said  refusal  was  made  upon  the  ground  that 
said  alleged  college  of  medicine  was  not  a  reputable  college  in  good  standing." 
Under  the  law  of  1887,  said  board  had  no  authority  to  refuse  to  grant  the  plain- 
tiff a  license  on  that  ground. 

It  appears  from  the  record  that  the  real  reason  for  refusing  the  application 
of  the  plaintiff  was  that  said  board  did  not  recognize  said  Independent  Medical 
College  as  "a  reputable  college  of  medicine  in  good  standing."  That  was  not  a 
sufficient  reason  for  refusing  to  grant  said  application. 


DECISIONS  ON  FACTS  BY  STATE  BOARDS  NOT  SUBJECT  TO  REVIEW 

OF  COURTS 

People  ex  rel.  Sheppard  v.  State  Board  of  Dental  Examiners,  110  III.  180 

1884 

The  Supreme  Court  says  that  it  is  a  question  of  fact  and  not  a  legal  question 
whether  a  dental  college  is  reputable  or  not  within  the  ordinary  meaning  of  the 
word.  It  is  also  a  question  of  fact  whether  the  requirements  in  the  act  of  1881, 
regarding  courses  of  instruction,  etc.,  have  been  complied  with.  These  questions 
are  by  the  statute  submitted  to  the  State  Board  of  Dental  examiners  for  decision. 
Their  action  is  to  be  predicated  upon  the  requisite  facts  and  no  other  tribunal 
is  authorized  to  investigate  them.  The  act  of  ascertaining  and  determining  what 
are  the  facts  is  in  its  nature  judicial,  involving  investigation,  judgment  and  dis- 
cretion. The  office  of  the  writ  of  mandamus  is  in  general  to  compel  the  perform- 
ance of  mere  ministerial  acts  prescribed  by  law.  Subordinate  judicial  tribunals 
may  by  mandamus  be  compelled  to  act  where  it  is  their  duty  to  act,  but  they 
cannot  be  compelled  to  decide  a  particular  case  in  a  particular  manner.  A  writ 
of  mandamus  is  not  a  remedy  for  erroneous  decisions.  A  subordinate  body  can 
be  directed  by  a  writ  to  act,  but  not  how  to  act,  in  a  matter  in  which  it  has 
the  right  to  express  its  judgment.  The  character  of  the  duty  and  not  that  of 
the  body  or  officers  determines  how  far  performance  of  duty  may  be  enforced  by 
mandamus.  The  refusal  of  the  Illinois  State  Board  of  Dental  Examiners  to 
grant  a  license  to  a  person  whose  application  was  based  on  a  diploma  issued  by 
a  dental  college  is  not  cause  for  a  writ  of  mandamus  to  compel  the  board  to 
grant  the  license,  since  to  entitle  the  applicant  to  a  license  the  diploma  must 
have  been  issued  by  a  reputable  dental  college  and  whether  the  college  is  a  reputa- 
ble one  is,  under  the  statute,  within  the  judgment  and  discretion  of  the  board  to 
determine.  The  petition  for  a  writ  of  mandamus  to  compel  the  board  to  issue  a 
certificate  is  denied. 


REGULATION  REGARDING  YEARS   OF  PRACTICE   NOT 
UNCONSTITUTIONAL 

Williams  v.  The  People,  121  III.  S.'f;  11  N.  E.  881 

1886 

The  plaintiff  was  indicted,  tried  and  convicted  for  violating  the  medical 
practice  act  of  1877,  and  appealed  to  the  Supreme  Court,  claiming  that  the  act 
was  unconstitutional.     The  court  held  that  it  is  an  undoubtedly  valid  exercise  of 


283 

the  police  power  of  tlic  state  to  prescribe  regulations  for  securing  admission  of 
qualified  persons  to  professions  and  callings  demanding  special  skill  and  that 
nowhere  is  this  power  more  wise  and  salutary,  or  more  imperviously  called  for, 
than  in  the  case  of  the  practice  of  medicine  as  it  concerns  the  preservation  of 
health  and  the  lives  of  the  people.  The  constitutional  objection  urged  against 
the  act  in  question  is  that  it  is  special  legislation  and  contrary  to  the  provision 
of  the  state  legislature  in  that  it  provides  that  the  act  shall  not  apply  to  those 
who  have  been  practicing  for  ten  years  within  the  state.  The  court  holds  that 
this  proviso  does  not  confer  upon  ten-year  practitioners  any  special  privilege, 
immunity  or  franchise.  It  does  not  confer  upon  them  anything;  it  leaves  them 
as  they  are,  simply  prescribing  as  a  qualification  that  ten  years'  practice  within 
the  state  shall  constitute  a  qualification  for  practicing  medicine.  The  plaintiff 
argues  that  "the  provisions  of  this  act"  —  that  is,  not  only  its  provisions  in 
respect  to  qualifications,  but  each  and  every  one  of  its  provisions — should  not 
apply  to  the  ten-year  practitioners.  This  includes  the  section  empowering  the 
board  to  exclude  from  practice  for  unprofessional  or  dishonorable  conduct.  The 
court  regards  this  provision  as  merely  a  regulation  pertaining  to  qualifications 
for  admission  to  practice.  The  purpose  of  the  provision  making  certificates  sub- 
ject to  revocation  for  unprofessional  or  dishonorable  conduct,  the  court  does 
not  regard  as  involved  in  this  case  since  the  plaintiff  has  no  grievance  in  this 
respect.  He  has  not  had  any  license  revoked,  has  never  received  a  certificate 
or  been  licensed  to  practice.     Judgment  affirmed. 


ABUSE  OF  DISCRETION  BY  BOARDS  SUBJECT  TO  MANDAMUS 

State  Board  of  Dental  Examiners  v.  John  M.  Cooper,  123  III.  227;  13  N.  E.  201 

1887 

The  Supreme  Court  says  that  while  a  mandamus  will  not  lie  to  compel  the 
performance  of  acts  or  duties  which  call  for  the  exercise  of  judgment  on  the 
part  of  the  officer  or  body  at  whose  hands  their  performance  is  required,  yet  if 
a  discretionary  power  is  exercised  with  manifest  injustice,  or  if  such  discretion 
is  grossly  abused  or  is  exercised  from  selfish  and  unworthy  motives,  the  courts 
may  order  its  due  and  proper  exercise.  Abuse  of  discretion  by  such  bodies  may 
be  controlled  by  mandamus.  Such  an  abuse  of  discretion  may  amount  to  a  vir- 
tual refusal  to  perform  the  duty  enjoined.  Discretion  vested  in  official  bodies 
must  not  be  exercised  for  the  gratification  of  feelings  of  malevolence,  for  the 
attainment  of  personal  or  selfish  ends  or  for  arbitrary  reasons,  but  for  the  public 
good.  It  should  be  controlled  by  an  honest  judgment  and  not  by  prejudice  or 
passion.  It  is  the  duty  of  the  State  Board  of  Dental  Examiners  on  the  applica- 
tion of  a  graduate  of  a  dental  college  for  a  license  to  decide  whether  the  college 
issuing  the  license  is  reputable  or  not.  If  the  board  decides  that  the  college  is 
reputable  it  has  exhausted  its  judicial  power  and  must  then  issue  a  license. 
Failure  to  issue  such  a  license  after  the  college  issuing  the  diploma  has  been 
pronounced  reputable  may  be  enforced  by  mandamus.  The  question  of  the  reputa- 
bility  of  the  college  must  be  decided  on  just  and  fair  principles  and  not  on  motives 
of  selfish  interest  or  to  injure  a  rival  college.  The  question  of  reputability  must 
be  decided  by  the  board  which  cannot  delegate  its  discretionary  power  to  an 
organization  outside  of  the  state.  The  action  of  the  Appellate  Court  in  issuing 
a  writ  of  mandamus  is  affirmed. 


REVOCATION  VOID  IF  RECORD  FAILS  TO  SHOW  NOTICE  TO  ACCUSED 
People,  for  use  of  State  Board  of  Health  v.  J.  C.  McCoy,  125  III.  289;  11  N.  E.  786 

1888 

The  Supreme  Court  says  that  it  may  be  conceded  that,  under  the  tenth  section 
of  the  act  of  1877,  to  regulate  the  practice  of  medicine  in  Illinois,  the  State 
Board  of  Health  had  power  to  revoke  certificates  issued  to  individuals  to  prac- 
tice medicine,  for  the  same  reasons  it  might  refuse   to  issue  such   certificates, 


284 

namely,  for  "unprofessional  or  dishonorable  conduct."  The  statute,  in  this 
respect,  however,  must  have  a  reasonable  construction.  The  board  could  not, 
from  mere  caprice,  or  without  cause,  revoke  a  certificate  fairly  issued  on  suffi- 
cient evidence  of  the  applicant's  qualifications.  The  right  of  the  citizen  to  prac- 
tice his  profession,  for  which  he  has  expended  time  and  money  to  qualify  him- 
self, is  too  important  to  be  taken  away  from  him  without  some  reasonable  cause. 
It  must  be  done  for  some  act  or  conduct  that  would,  in  common  judgment,  be 
deemed  "unprofessional"  or  "dishonorable."  Had  the  board  found  the  defendant 
guilty  of  making  statements  and  promises  calculated  to  deceive  and  defraud  the 
public,  that  would  have  been  "unprofessional  and  dishonorable  conduct."  Treat- 
ing the  record  of  the  board,  in  the  matter  of  revoking  the  certificate  that  had 
been  issued  to  the  defendant,  as  having  the  force  of  a  proceeding  in  its  nature 
judicial  on  the  part  of  the  board  in  a  case  where  it  had  jurisdiction  of  the  sub- 
ject-matter to  be  investigated,  yet  the  record  was  fatally  defective,  for  the  reason 
that  it  was  made  to  appear  that  the  defendant  had  no  notice  of  the  proceedings 
proposed  to  be  taken  against  him.  The  prosecution  put  the  defendant  on  the 
stand,  and  made  him  their  own  witness,  and  he  distinctly  stated,  at  their  instance, 
that  the  notice  found  in  the  record  was  never  in  fact  served  on  him.  The  affi- 
davit of  service  was  not  sufficient  to  overcome  his  testimony  in  that  respect.  It 
is  contrary  to  the  analogies  of  the  law  that  a  proceeding,  in  its  nature  judicial, 
should  be  obligatory  and  conclusive  on  a  person  not  a  party  thereto,  otherwise  a 
party  might  be  deprived  of  important  rights  with  no  opportunity  to  defend 
against  wrongful  accusations.  Whether  the  right  to  practice  medicine  or  law 
is  property,  in  the  technical  sense,  it  is  a  valuable  franchise,  and  one  of  which  a 
person  ought  not  to  be  deprived,  without  being  offered  an  opportunity,  by  timely 
notice,  to  defend  it. 


ITINERANT   VENDORS    SUBJECT    TO   MEDICAL    PRACTICE    ACT 

People  v.  Blue  Mountain  Joe,  129  III.  870;  21  N.  E.  923 

1889 

This  was  an  action  for  debt  brought  against  "Blue  Mountain  Joe"  before  a 
justice  of  the  peace,  appealed  to  the  county  court,  where  a  verdict  and  judgment 
was  rendered  for  the  defendant.  Plaintiff  appealed  to  the  Superior  Court.  The 
defendant  moved  to  dismiss  the  appeal  on  the  following  grounds :  ( 1 )  From  the 
record  it  does  not  appear  that  a  crime,  a  franchise,  a  freehold,  or  the  validity 
of  a  statute  is  involved  or  that  the  court  has  jurisdiction;  (2)  the  appeal  was 
improperly  taken;  (3)  this  appeal  is  contrary  to  the  spirit  of  the  law  forbidding 
appeals  by  the  people  or  twice  putting  the  defendant  in  jeopardy.  The  court 
holds  that  the  case  is  a  civil  proceeding  for  the  recovery  of  a  penalty  and  that 
the  third  ground  is  without  value,  and  that  if  the  validity  of  the  statute  under 
which  the  suit  is  brought  is  involved  the  appeal  was  correctly  prosecuted  to  this 
court.  The  court,  therefore,  first  considers  the  question  of  the  validity  of  the 
act  of  1887.  The  record  shows  that  the  defendant  was  engaged  in  selling  med- 
icine by  means  of  a  show  consisting  of  a  band  of  music  and  some  Indians,  either 
real  or  pretended.  He  paraded  the  streets  twice  a  day  and  gave  free  shows  at 
night,  after  which  his  medicines  were  sold  to  anyone  who  would  buy  them.  In 
the  trial  court  the  board  offered  to  show  that  the  defendant  professed  at  his 
meetings  that  he  could  cure  rheumatism,  kidney  diseases  and  other  diseases  and 
that  he  sold  these  medicines  for  the  cure  of  such  diseases,  to  the  proof  of  which 
matters  the  counsel  for  the  defendant  objected  and  the  court  sustained  the  objec- 
tion. It  was  shown  that  the  defendant  circulated  advertisements  of  his  remedies 
and  counsel  for  the  board  offered  to  read  such  advertisement  to  the  jury.  The 
trial  judge  held  the  evidence  to  be  incompetent  and  refused  to  permit  any  proof 
to  be  made  on  the  ground  that  the  eleventh  section  of  the  law  was  unconstitu- 
tional and  void.  The  trial  judge  instructed  the  jury  to  return  a  verdict  for  the 
defendant,  which  was  done.  The  Supreme  Court  holds  that  it  was  clearly  com- 
petent to  show  that  the  defendant  was  an  itinerant  vendor  of  drugs  and  nostrums 
for  the  treatment  of  diseases  and  that  the  question  whether  he  was  such  an 
itinerant  vendor  was  for  the  jury  to  determine.     The  only  theory  on  which  the 


285 

action  of  the  trial  court  could  be  sustained  is  that  the  act  under  consideration 
is  void.  If  the  statute  is  void  the  action  was  right.  If  the  statute  \~,  valid  the 
action  of  the  court  was  erroneous.  The  Supreme  Court,  therefore,  holds  that  the 
only  question  at  issue  is  the  validity  of  section  11  of  the  act  of  18S7.  This  sec- 
tion provides  that  itinerant  vendors  shall  have  a  license  and  that  tailing  to  do 
so,  they  shall  be  subject  to  fine.  This  provision  falls  clearly  within  the  police 
power  of  the  state.  The  defendant  holds  that  the  subject  matter  of  this  section 
is  not  embraced  in  the  title  of  the  act  and  is  consequently  void.  The  Supreme 
Court  holds  that  if  the  subject  of  the  act  be  expressed  in  the  title  in  general 
terms  it  is  sufficient.  The  right  to  prescribe  medicines  for  the  cure  of  diseases 
and  to  administer  them,  falls  clearly  within  the  practice  of  medicine  and  the 
regulation  of  the  sale  of  drugs  and  nostrums  by  itinerant  vendors  as  clearly  falls 
within  the  purpose  of  the  act  as  expressed  in  its  title.  The  judgment  of  the 
county  court  is  reversed  and  the  case  remanded. 


MIDWIFERY   IS    PRACTICE    OF   MEDICINE 

People  v.  Arendt,  60  III.  App.  89 

1895 

The  Appellate  Court  of  Illinois,  third  district,  says  that  it  appeared  from  the 
proof  that  the  defendant  held  herself  out  as  a  midwife  and  practiced  in  that 
capacity.  It  was  urged  that  this  was  not  a  violation  of  the  act  to  regulate  the 
practice  of  medicine.  The  court  thinks  very  clearly  it  was.  Midwifery  is  an 
important  department  of  medicine,  and  is  so  recognized  by  the  act.  The  law- 
making power  of  the  state  has  enacted  that  "No  person  shall  practice  medicine 
in  any  of  its  departments  in  this  state  without  the  qualifications  required  by 
this  act."  It  needs  no  argument  to  show  the  importance  of  obstetrics  as  a  depart- 
ment of  medicine,  nor  the  necessity  that  those  who  assume  to  practice  in  that 
department  should  possess  due  knowledge  and  skill.  The  welfare  of  their  patients 
is  certainly  within  the  purview  of  the  law,  no  less  than  in  other  departments, 
where,  in  many  instances,  at  least,  even  less  care  and  skill  may  be  essential,  and 
where  the  consequences  of  ignorance  and  unskilfulness  may  be  less  unfortunate. 
The  services  which  the  defendant  usually  rendered  were  not  within  the  excep- 
tions of  "emergency  or  the  domestic  administration  of  family  remedies,"  men- 
tioned in  section  10. 


TREATMENT    NOT   LIMITED    TO    THE    USE    OF    DRUGS 

Eastman  v.  People,  71  III.  App.  236 

1897 

The  Appellate  Court,  third  district,  says  that  it  appeared  that  the  appellant 
was  engaged  in  the  practice  of  "the  profession  of  osteopathy,"  as  it  was  termed 
in  the  briefs;  that  he  had  an  office  where  he  received  patients,  and  that  he  visited 
patients  at  their  homes;  that  he  advertised  his  system  and  his  skill  therein  by 
publication  in  the  newspapers,  and  that  he  professed  ability  to  understand  and 
treat  human  ailments  intelligently  and  successfully.  So  far  as  shown,  his  treat- 
ment consisted  wholly  of  rubbing  and  manipulating  the  affected  parts  with  his 
hands  and  fingers,  and  by  flexing  and  moving  the  limbs  of  the  patient  in  various 
ways.  It  was  insisted  on  his  behalf  that  because  he  used  no  medicines  or  instru- 
ments he  was  not  amenable  to  the  statute,  which  declared  that  "Any  person  shall 
be  regarded  as  practicing  medicine  within  the  meaning  of  this  act  who  shall 
treat,  operate  on,  or  prescribe  for  any  physical  ailment  of  another."  It  was 
argued  that  this  provision  must  receive  reasonable  interpretation,  and  that  to 
"treat"  implies  the  use  of  medicines  or  drugs  of  some  sort,  and  to  "operate  on" 
implies  the  use  of  instruments  of  some  sort.  This  is  not  so  necessarily.  Many 
of  the  minor  operations  are  effected  without  the  use  of  instruments  by  mere  pres- 
sure, extension,  and  flexion.  This  of  course  implies  some  knowledge  of  anatomy 
and  some  skill.  So,  many  forms  of  disease  are  treated  by  attention  to  the  diet, 
habits  and  mode  of  life  without  resorting  to  medical  remedies. 


286 

It  was  said  by  counsel  that  if  the  statute  reached  this  case,  it  must  include 
treatment  by  Turkish  baths,  massage  and  the  like.  The  court  thinks  not.  The 
evidence  showed  that  the  appellant  held  himself  out  as  competent  to  treat  and 
cure  numerous  diseases,  such  as  all  forms  of  fevers,  cerebro-spinal  meningitis, 
catarrh,  diphtheria,  croup,  pneumonia,  asthma,  indigestion,  dysentery,  kidney 
diseases,  measles,  paralysis,  and  many  others,  including  in  fact  a  large  propor- 
tion of  the  ailments  common  to  mankind.  He  represented  himself  as  a  graduate 
of  the  new  school  of  "osteopathy,"  and  held  himself  out  as  qualified  to  examine 
and  treat  all  who  might  seek  his  aid.  Herein  he  differed  from  those  who  give 
Turkish  baths,  massage  and  the  like.  He  professed  to  be  able  to  diagnose  and 
advise  in  respect  to  a  long  list  of  diseases,  and  to  furnish  discriminating  and 
efficient  treatment  to  those  who  might  come  to  him,  and  while  he  might  rely 
wholly  upon  manipulation,  flexing,  rubbing,  extension,  etc.,  yet  he  professed  to 
have  skill  and  judgment  in  those  methods,  so  as  properly  to  adapt  the  treatment 
to  each  case,  giving  it  what  was  appropriate,  in  amount,  and  with  repetition  at 
such  times  and  to  such  extent  as  might  be  dictated  by  his  knowledge  and  expe- 
rience. By  his  skill  in  the  use  of  his  peculiar  remedies  or  methods  he  claimed  to 
be  competent  to  relieve  and  cure  various  ailments,  and  therefore  he  invited  patron- 
age. 

It  was  suggested  rather  than  argued  that  as  the  title  of  the  act  in  question 
was  "An  act  to  regulate  the  practice  of  medicine  in  the  State  of  Illinois,"  and 
as  the  constitution  provides  that  no  act  shall  embrace  more  than  one  subject, 
which  must  be  expressed  in  the  title,  any  construction  which  would  include  a 
matter  not  within  the  practice  of  medicine  must  be  avoided,  or  the  act  would  be 
unconstitutional.  "Medicine  is  the  art  of  understanding  diseases  and  curing  or 
relieving  them  when  possible."  (Bigelow.)  "It  is  that  branch  of  physic  which 
relates  to  the  healing  of  diseases."  (Dunglison.)  This  act  is  not  restricted  to 
any  particular  methods  or  remedies.  Indeed  these  are  almost  innumerable,  con- 
sidering what  are  used  and  what  have  been  discarded.  The  court  is  of  the 
opinion  that  the  proofs  brought  the  appellant  within  the  act,  and  that  he  was 
liable  to  the  penalty  imposed  thereby  for  practicing  medicine  without  license. 


HABEAS  CORPUS  NOT  PROPER  METHOD  OF  TESTING  CONSTITUTION- 
ALITY OF  ACT 

People  esc  rel.  Birklwlz  v.  Jonas,  113  III.  316;  50  N.  E.  1051 

1898 

The  Supreme  Court  says  that  the  petitioner  was  held  in  custody  by  virtue 
of  a  conviction  for  practicing  medicine  without  a  license,  and  the  avowed  purpose 
of  the  petition  for  a  writ  of  habeas  corpus  was  to  test  the  constitutionality  of 
the  act  to  regulate  the  practice  of  medicine.  The  question  presented  was,  whether 
or  not,  under  the  Illinois  statute  regulating  the  subject  of  habeas  corpus,  the 
petitioner,  who  was  regularly  imprisoned  by  virtue  of  a  mittimus  by  a  justice 
of  the  peace,  might,  in  the  mode  here  pursued,  test  the  constitutionality  of  the 
act  under  which  the  conviction  was  had.     It  is  held  that  he  could  not. 


TREATMENT  BY  RUBBING  IS  PRACTICE  OF  MEDICINE 

W.  D.  Jones  v.  People,  84  III.  App.  Jt53 

1899 

The  Appellate  Court  of  Illinois,  third  district,  says  that  section  10  of  the 
medical  practice  act  declares  that  any  person  shall  be  regarded  as  practicing 
medicine  who  shall  treat,  operate  on,  or  prescribe  for  any  physical  ailment  of 
another.  If  to  advertise  that  one  had  effected  marvelous  cures,  and  that  patients 
reap  rich  rewards  of  this  large  experience  and  new  methods,  and  by  means  of 
such  advertisements  secure  the  attendance  of  persons  whom  he  actually  treated 
and  operated  on  does  not  fall  literally  within  the  definition  of  the  statute  of  what 
shall  be  regarded  as  practicing  medicine,  then  it  would  be  difficult  to  imagine 


287 

the  legislative  intent  by  such  enactment.  If  to  treat  or  operate  upon  a  person 
for  physical  ailment,  by  rubbing  the  all'ecteil  part,  is  not  a  treatment  <<r  opera- 
tion for  a  physical  ailment,  what  is  it  ?  It  seems  to  the  court  that  the  mere 
statement  of  the  question  demonstrates  the  absurdity  of  every  opposite  position. 
It  was  insisted  that  the  appellant  (accused)  was  acting  under  the  direction  of  a 
licensed  physician,  and  in  its  instructions  the  trial  court  told  the  jury,  in  sub- 
stance, that  although  the  treatment  may  have  been  requested  and  directed  by  a 
regular  attending  physician  of  the  person  being  treated,  yet  the  person  in  fact 
administering  the  treatment  would  be  guilty  of  practicing  medicine.  As  an 
abstract  principle,  such  instruction  is  wrong  and  vicious,  should  not  be  given  in 
any  case,  but  in  the  case  presented  there  was  no  evidence  admitted  to  the  jury, 
and  no  competent  evidence  offered  that  in  any  of  the  three  instances  wherein 
it  was  proved  that  the  appellant  had  practiced  medicine,  he  was  acting  under 
directions  of  a  regular  attending  physician  of  the  persons  who  were,  in  fact, 
treated  or  operated  on  by  the  appellant,  and  hence  the  instruction,  although 
wrong  in  principle,  could  not  and  did  not  harm  the  appellant.  In  view  of  the 
whole  evidence,  no  other  verdict  than  the  one  returned,  that  of  guilty,  would 
have  been  proper  or  responsive  to  the  evidence,  and  in  such  cases  errors  of  instruc- 
tions will  seldom  reverse. 


APPEAL  ON  CONSTRUCTION  OF  STATUTE  NOT  TO  SUPREME  COURT 

State  Board  of  Health  v.  People  ex  rel.  Bailey,  181  III.  512;  o't  N.  E.  1011 

1899 

This  was  a  petition  for  mandamus  brought  by  Millard  Fillmore  Bailey,  in  the 
circuit  court  of  Cook  county,  against  the  state  board  of  health,  to  compel  the 
board  to  issue  him  a  license  for  the  practice  of  medicine  in  this  state.  The  court 
granted  the  writ.  To  reverse  the  judgment  of  the  circuit  court,  the  state  board 
of  health  sued  out  a  writ  of  error  in  this  court.  Under  the  act  of  1887  the  state 
board  of  health  adopted  certain  rules  under  which  persons  might  be  permitted  to 
practice  medicine  in  this  state.  The  only  questions  presented  are:  First,  what 
construction  shall  be  placed  on  the  statute  as  to  the  powers  of  the  board;  and, 
second,  whether  the  petitioner  complied  with  the  rules  of  the  board,  so  as  to 
entitle  him  to  a  license  to  practice  medicine  in  this  state.  It  is  therefore  plain 
that  this  court  has  no  jurisdiction  to  entertain  this  writ  of  error;  that  the  writ 
should  have  been  sued  out  in  the  appellate  court.  In  cases  involving  merely 
the  construction  of  a  statute,  not  its  validity,  and  none  of  the  other  conditions 
existing  necessary  to  give  the  right  of  appeal  or  writ  of  error  directly  from  the 
trial  court  to  the  supreme  court,  the  latter  court  will  have  no  jurisdiction.  The 
appeal  in  such  case  should  be  taken  to  the  appellate  court. 


MEDICAL  COMPANIES  REQUIRED  TO  TAKE  OUT  ITINERANT  VENDOR'S 

LICENSE 

Watkins  Medical  Co.  v.  Paul,  87  III.  App.  278 

1900 

The  Appellate  Court  of  Illinois,  second  district,  says  that  section  11  of  the 
medical  practice  act  of  1887  requires  "any  itinerant  vendor  of  any  drug,  nos- 
trum, ointment  or  appliance  of  any  kind,  intended  for  the  treatment  of  disease 
or  injury,  or  who  shall,  by  writing  or  printing,  or  any  other  method,  profess 
to  cure  or  treat  disease  or  deformity  by  any  drug,  nostrum,  manipulation  or 
other  expedient."  to  "pay  a  license  of  $100  per  month"  to  the  state  board  of 
health,  etc.  The  medical  company  entered  into  a  written  contract  with  one 
Wehmeyer  to  sell  and  distribute  its  remedies  by  itinerant  vending,  Paul  and 
another  guaranteeing  performance  on  his  part,  the  contract  being  of  such  a 
nature  that  the  court  thinks  the  medical  company  was  the  seller,  and  Wehmeyer 
was  but  its  agent  and  employee;  and  it  holds  that,  under  the  statute,  the  com- 
pany was  required  to  take  out  a  license.  As  it  did  not  take  out  a  license,  its 
sales,   through   its   traveling   salesman,   were   in   violation   of    law.      Again,    the 


288 

court  says  that  in  the  statute  is  a  recurring  penalty  for  each  sale  without  a 
license,  showing  the  object  of  the  statute  is  to  prevent  the  itinerant  vending  of 
drugs  except  under  the  license  and  control  of  the  state  board  of  health.  The 
court  thinks  it  obvious  that  the  purpose  of  the  statute  was  not  the  collection  of 
revenue,  but  to  prevent  the  public  from  being  injured  in  health  and  defrauded 
by  itinerant  sales  of  harmful  drugs  and  nostrums.  Therefore,  the  contract  refer- 
red to,  by  which  the  company  sought  to  evade  the  statute,  was  impliedly  pro- 
hibited, and  was  therefore  void,  and  Wehmeyer  was  not  liable  to  the  medical 
company  thereon,  and,  as  he  was  not  liable,  his  guarantors  were  not  liable. 


MANIPULATION  IS  PHYSICAL  REMEDY 
People,  for  tJw  use  of  the  State  Board  of  Health  v.  B.  E.  Jones,  92  III.  App.  ^Ifi 

1900 

The  Appellate  Court  of  Illinois,  third  district,  says  that  the  evidence  showed 
that  the  defendant,  in  connection  with  his  father,  maintained  an  office  in  the 
city  of  Bloomington,  where  he  treated  persons  for  physical  ailments  and  received 
fees  for  the  same.  The  treatment  consisted  of  rubbing  and  manipulating  the 
parts  affected,  and  by  flexing  and  moving  the  limbs,  commonly  known  as  "mas- 
sage" treatment.  The  decision  of  the  case  hinged  upon  the  construction  of  the 
last  clause  of  section  7  of  the  act  of  1899,  to  regulate  the  practice  of  medicine, 
which  provides  that  this  act  shall  not  apply  to  surgeons  of  the  United  States 
Army,  etc.,  "or  to  any  person  who  ministers  to  or  treats  the  sick  or  suffering 
by  mental  or  spiritual  means,  without  the  use  of  any  drug  or  material  remedy." 
It  was  contended  that  "massage  treatment"  is  a  treatment  of  the  sick  by  "men- 
tal or  spiritual  means,"  and  does  not  involve  the  use  of  a  "material  remedy." 
It  is  clear  to  the  court  that  rubbing  or  manipulating  the  affected  parts  is  the 
employment  of  a  physical  agency  as  distinguished  from  a  mental  or  spiritual 
one.  There  may  be  a  combination  of  the  two,  as  was  testified  to  by  the  defend- 
ant, but  to  bring  the  person  applying  the  treatment  within  the  exemption,  the 
treatment  must  be  exclusively  mental  or  spiritual.  The  term  "material"  remedy 
means  a  physical  remedy. 

As  the  [trial]  court  took  a  contrary  view  and  instructed  the  jury  that  a 
person  giving  massage  treatment  was  not  liable  under  the  act,  the  judgment 
must  be  reversed. 


MANIPULATION  IS   PHYSICAL   TREATMENT 
People,  for  the  use  of  the  State  Board  of  Health  v.  W.  D.  Jones,  92  III.  App.  4^5 

1900 

The  Appellate  Court  of  Illinois,  third  district,  says  that  the  evidence  showed 
that  the  defendant  kept  an  office  in  the  city  of  Bloomington  for  some  time  prior 
to  July  1,  1899,  where  he  treated  persons  afflicted  with  diseases.  His  treatment 
consisted  of  rubbing  and  manipulating  with  his  hands  the  parts  supposed  to  be 
affected,  and  constituted  a  violation  of  the  medical  practice  act  of  1887,  as  held 
by  this  court  in  Eastman  v.  The  People,  etc.,  71  111.  App.  236,  and  in  Jones  v. 
The  People,  etc.,  84-  111.  App.  453. 

The  act  of  1887  was  expressly  repealed  by  the  medical  practice  act  of  1899, 
with  no  "saving  clause,"  saving  penalties  incurred  under  the  repealed  act.  For 
that  reason,  the  defendant  contended  that  he  was  not  liable  for  the  statutory 
penalty  sued  for  and  called  to  his  aid  the  old  rule  that  where  a  statute  impos- 
ing a  penalty  is  repealed,  and  the  repealing  statute  contains  no  saving  clause, 
the  penalty  provided  by  the  repealed  statute  cannot  be  recovered  in  an  action 
brought  after  the  repeal.  Section  4  of  chapter  131  of  the  Revised  Statutes  of 
Illinois,  entitled  construction  of  statutes,  provides  that  no  new  law  shall  be  con- 
strued to  repeal  a  former  law,  whether  such  former  law  is  expressly  repealed  or 
not,  as  to  any  offense  committed  against  the  former  law,  or  as  to  any  act  done, 
any  penalty,  forfeiture  or  punishment  incurred,  or  any  right  accrued,  or  claim 
arising  under  the  former  law,  or  in  any  manner  whatever   to  affect  any   such 


289 

offense  or  act  so  committed,  or  any  penalty,  forfeiture  or  punishment  so  incurred, 
save  only  that  the  proceedings  thereafter  shall  conform  to  the  laws  in  force  at 
the  time  of  such  proceedings.  The  rule  cited  by  the  defendant  cannot  prevail 
over  this  plain   statutory   provision. 


DISCIPLINARY  POWER  OF  STATE   BOARD   OF  HEALTH 

State  Board  of  Health  v.  Ross,  191  III.  87;  60  N.  E.  811 

1901 

The  question  in  this  case  is  whether,  under  the  act  of  the  legislature  of  Illi- 
nois to  regulate  the  practice  of  medicine,  in  force  July  1,  1899,  the  State  Board 
of  Health  has  power  to  discipline  and  revoke  the  certificates  of  persons  who  had 
been  licensed  to  practice  medicine  and  surgery  by  the  board  prior  to  that  date. 
Section  G  of  the  act  provides  that  the  board  may  refuse  to  issue  the  certificates 
provided  for  in  the  act  in  certain  cases,  and  "may  revoke  such 
certificates  for  like  causes."  The  Appellate  Court  held  that  this  power 
of  revocation  plainly  referred  to  certificates  issued  under  the  act, 
stating  that  if  it  was  the  intention  of  the  legislature  to  give  the 
board  of  health  the  power  to  discipline  the  holders  of  certificates  issued 
prior  to  July  1,  1899,  and  to  revoke  such  certificates,  it  had  certainly  failed  to 
express  such  intention  by  this  act.  If  the  consequences  of  interpreting  the  statute 
according  to  its  plain  and  obvious  meaning  are  likely  to  prove  disastrous  to  the 
people  of  the  state  at  large,  as  contended  by  counsel,  and  as  would  seem  not 
improbable,  considering  the  large  number  of  physicians  and  surgeons  throughout 
the  state,  and  the  temptations  to  obtain  money  and  practice  by  a  resort  to  dishon- 
orable conduct  which  are  supposed  to  beset  professional  men,  the  responsiility 
must  rest  with  the  legislature,  and  not  the  courts.  If  the  tendency  of  a  law  is 
vicious,  the  stricter  its  enforcement  the  sooner  it  will  be  amended  or  repealed. 
So  the  court  answered  the  question  raised  in  the  negative.  And  the  opinion  of 
the  Appellate  Court  is  now  adopted  by  the  Supreme  Court  of  Illinois,  which 
affirms  its  judgment.  The  Supreme  Court  merely  adds  to  that  opinion  that  it 
has  carefully  examined  all  of  the  questions  involved,  and  considered  the  criticisms 
of  the  opinion  by  counsel  and  their  arguments  against  the  correctness  of  the 
same,  and  is  of  the  opinion  the  conclusions  reached  and  announced  in  the  opinion 
are  correct. 


POWER  TO  DETERMINE  STANDING  OF  MEDICAL  COLLEGE 

Illinois  State  Board  of  Health  v.  The  People,  102  III.  App.  614 

1902 

This  case  was  instituted  under  the  statute  of  1887  providing  that  the  State 
Board  of  Health  "shall  issue  certificates  to  all  who  furnish  satisfactory  proof  of 
having  received  diplomas  or  licenses  from  legally  chartered  medical  institutions 
in  good  standing,  as  may  be  determined  by  the  board."  Prior  to  1890,  the  board 
adopted  a  resolution  that  medical  colleges  in  good  standing  under  the  first  sec- 
tion of  this  statute,  which  contained  a  provision  substantially  the  same  as  that 
quoted,  with  reference  to  applicants  who  relied  on  a  diploma,  was  thereby  defined 
to  include  only  those  colleges  which  should,  after  sessions  of  1890-91,  require  four 
years  of  professional  study.  A  diploma  dated  March  22,  1894,  was  presented. 
The  defense  was  that  the  institution  which  granted  it  was  not,  at  the  time  the 
diploma  was  issued,  a  medical  institution  in  "good  standing,"  within  the  mean- 
ing of  the  statute  above  quoted  from,  as  determined  by  the  board  of  health — in 
that  students  therein  were  required  to  take  a  regular  course  of  study  of  only 
two  years,  instead  of  four  years,  as  required  by  the  rules  and  regulations  of  the 
board.  Now,  the  Branch  Appellate  Court  of  the  First  District  of  Illinois  holds 
it  to  be  undoubtedly  the  law  that  the  State  Board  of  Health  is  possessed  of  dis- 
cretionary power  to  determine  whether  a  medical  college  is  in  "good  standing," 
within  the  meaning  of  the  statute  and  as  defined  in  its  resolution  above  men- 


290 

tioned,  and  that  when  the  board  has  determined  that  question  in  favor  of  the 
applicant,  it  has  exhausted  its  discretion,  and  may  not  refuse  a  license  for  arbi- 
trary reasons  of  its  own.  But  it  appeared  most  satisfactorily  that  the  refusal 
to  grant  the  license  in  question  was  because  the  institution  granting  the  diploma 
was  not  in  "good  standing"  within  the  rules  adopted  by  the  board.  If  there 
was  in  the  record  anything  which  showed  that  the  institution  had  brought  itself 
within  the  statute  subsequent  to  the  issuance  of  the  diploma  in  question,  it  was 
immaterial  for  the  purposes  of  this  case.  The  question  here  was  whether  the 
medical  institution  was  in  good  standing  at  the  time  the  diploma  was  issued, 
and  that  inquiry,  on  investigation,  had  been  answered  by  the  State  Board  of 
Health  adversely  to  the  applicant,  and  was  not  subject  to  review  by  mandamus 
proceedings. 

TREATMENT  BY  MANIPULATION  NOT  MENTAL  TREATMENT 

People,  for  the  use  of  the  State  Board  of  Health  v.  Gordon,  19Jf  III.  560  ; 

62  N.  E.  858;  88  Am,  St.  Rep.  165 

1902 

The  Supreme  Court  says  that  it  thinks  it  clear,  from  the  several  sections  of 
the  act  of  1899  to  regulate  the  practice  of  medicine  in  the  state  of  Illinois,  that 
the  State  Board  of  Health  is  authorized  to  divide  those  who  desire  to  practice 
medicine  in  this  state  into  two  classes;  that  is,  those  who  desire  to  practice  med- 
icine and  surgery  in  all  their  branches,  and  those  who  desire  to  practice  any 
other  system  or  science  of  treating  human  ailments  without  the  use  of  medicin? 
or  instruments.  In  this  case,  the  party  said  that  his  treatment  was  a  mental 
science.  But  he  said,  too,  "I  first  make  a  diagnosis.  Then  I  remove  the  cause 
for  that  condition  by  working  and  freeing  the  nerve  force.  ...  I  get  as  near 
the  muscles  as  I  can.  If  a  person  is  fleshy,  it  takes  more  force."  He  also  flexed, 
or,  as  one  witness  said,  bent  the  limbs.  The  court  declares  that  it  is  at  a  loss 
to  perceive  how  it  could  be  said  that  his  own  testimony  did  not  tend  to  show 
that  he  did  treat  and  operate  on  patients  for  physical  ailments,  within  the  mean- 
ing of  section  7  of  the  act,  which  defines  who  shall  be  regarded  as  practicing 
physicians,  within  the  meaning  of  the  act,  as  including  both  classes  above  men- 
tioned, and  defines  the  practice  of  medicine  as  including  all  "who  shall  treat  or 
profess  to  treat,  operate  on  or  prescribe  for  any  physical  ailment  or  any  physical 
injury  to  or  deformity  of  another."  In  short,  the  court  thinks  that  all  the  testi- 
mony tended  to  show  that  he  practiced  what  is  known  as  osteopathy,  at  least, 
the  treatment  was  of  that  nature.  It  says  further  that  it  hardly  thinks  that 
the  school  of  osteopathists  and  those  who  believe  in  their  method  and  system  of 
treatment,  would  be  willing  to  concede  that  such  treatment  is  no  more  than  that 
which  a  trained  nurse  might  administer.  While  it  may  be  truthfully  said  that 
it  is  not  the  practice  of  medicine  in  the  common  acceptation  of  that  term,  it  can- 
not be  claimed  that  it  does  not  "profess  to  treat,  operate  on  or  prescribe  for  any 
physical  injury  to  or  deformity  of  another,"  and  certainly  it  cannot  be  insisted 
that  such  persons  do  not  practice  another  "system  or  science  of  treating  human 
ailments  without  the  use  of  medicine  internally  or  externally."  Nor  is  the  court 
able  to  see  how,  under  his  own  evidence,  the  position  advanced  could  be  main- 
tained that  he  was  exempt  from  the  operation  of  the  statute  by  the  last  clause 
of  the  proviso  to  section  7 ;  that  is,  that  he  was  a  person  "who  ministers  to  or 
treats  the  sick  or  suffering  by  mental  or  spiritual  means,  without  the  use  of  any 
drug  or  material  remedy."  Very  clearly  this  provision,  the  court  says,  means 
that  those  who  pretend  to  relieve  the  ailments  of  others  by  mental  or  spiritual 
means  shall  not  be  considered  within  the  act;  but  if  this  party,  under  the  proof 
in  this  case,  could  bring  himself  within  that  exception,  then  every  one  who  treats 
diseases  without  administering  medicine,  either  externally  or  internally,  could 
also  be  brought  within  the  exception.  Few,  perhaps,  if  any,  physicians  attempt 
to  treat  the  sick  and  suffering  without  appealing  to  the  mental  faculties,  to  a 
greater  or  less  degree,  in  aid  of  the  remedies  they  apply  or  prescribe;  but  that 
is  not  treating  the  sick  by  mental  or  spiritual  means.  Again,  the  court  says, 
that  merely  giving  massage  treatment  or  bathing  a  patient  is  very  different  from 


291 

advertising  one's  business  or  calling  to  be  that  of  a  doctor  or  physician,  and,  ■>- 
such,  administering  osteopathic  treatment.  The  one  properly  falls  within  the 
profession  of  a  trained  nurse,  while  the  other  does  not. 


SALE  OF  A  DEVICE  NOT  THE  PRACTICE  OF  MEDICINE 
People,  for  the  use  of  State  Board  of  Health  v.  Lehr,  196  III.  361;  63  N.  E.  725 

1902 

The  Supreme  Court  holds  that  a  question  was  manifestly  improper  in  which 
a  physician  was  asked  to  state  whether  or  not,  in  his  opinion,  a  person  prescrib- 
ing a  medical  device,  claiming  that  it  would  cure  rheumatism,  etc.,  would  be 
regarded  as  practicing  medicine,  as  the  witness  understood  the  term.  The  court 
says  that  the  statute  defines  the  practice  of  medicine,  and  that  it  was  for  the 
jury,  and  not  for  a  witness,  even  though  he  might  be  called  an  "expert,"  to  say 
whether  certain  conduct  amounted  to  the  practice  of  medicine.  In  other  words, 
this  question  sought  to  have  the  witness  decide  the  very  ultimate  question  which 
the  jury  had  been  sworn  to  try,  and,  consequently,  an  objection  to  it  was  prop- 
erly sustained.  Then  it  was  asked  that  the  jury  be  instructed  that  if  it  found 
from  the  evidence  that  the  party  charged  with  illegally  practicing  medicine  pre- 
scribed a  certain  instrument  or  device  to  persons  suffering  from  physical  ailments, 
and  recommended  it  as  a  means  of  cure  or  relief  for  such  ailments,  and  that  he 
did  so  without  first  obtaining  a  license  therefor  from  the  State  Board  of  Health, 
then  the  jury  should  find  him  guilty  and  assess  his  fine  as  provided  by  statute. 
But  this  instruction,  in  view  of  the  facts  of  the  case,  the  court  holds,  did  not 
correctly  state  the  law.  It  says  that  the  party  did  not  "treat,  or  profess  to 
treat,  operate  on  or  prescribe  for  any  physical  ailment,  or  any  physical  injury 
to  or  deformity  of  another."  He  simply  offered  and  recommended  the  instrument 
or  device  in  question  for  sale.  He  was  practicing  medicine,  within  the  meaning 
of  the  statute,  no  more  than  is  the  druggist  or  pharmacist  who  sells  and  recom- 
mends surgical  instruments,  atomizers,  and  innumerable  other  appliances  used 
by  the  afflicted.  If  this  instruction  should  be  held  to  announce  the  correct  rule 
of  law,  then  any  neighbor  or  friend  who  might  prescribe  or  recommend  the  use 
of  a  particular  instrument  or  device  would  be  guilty  of  a  violation  of  the  statute, 
which  is  certainly  not  in  accord  with  the  spirit  of  the  statute  or  the  intention 
of  the  legislature.  The  evidence  not  showing  that  he  was  an  itinerant  vendor  of 
the  device,  he  could  not  properly  be  convicted  of  violating  section  8  of  the  statute, 
which  provides  "that  any  itinerant  vendor  of  any  drug,  nostrum,  ointment  or 
appliance  of  any  kind  intended  for  the  treatment  of  diseases  or  injury,  who 
shall,  by  writing  or  printing,  or  any  method,  profess  to  cure  or  treat  disease  or 
deformity  by  any  drug,  nostrum  or  application,  shall  pay  a  license,"  etc.,  admit- 
ting that  the  device  in  question  was  an  appliance,  within  the  meaning  of  this 
statute.  This,  like  all  other  penal  statutes,  must  be  strictly  construed.  The 
statute  is  a  wise  and  humane  one,  and,  within  its  reasonable  construction,  to  be 
rigidly  enforced;  but  any  attempt  to  make  it  cover  cases  like  this  would  be  an 
abuse,  rather  than  an  enforcement  of  it. 


FITTING  GLASSES  NOT  THE  PRACTICE  OF  MEDICINE 

People,  for  use  of  the  State  Board  of  Health  v.  Smith,  208  III.  31;  69  N.  E.  810 

1904 

The  Supreme  Court  says  that  there  was  nothing  in  the  record  from  which  it 
could  determine  just  what  the  complaint  against  the  defendant  was;  but  for  the 
purposes  of  this  decision,  let  it  be  assumed,  as  asserted  by  counsel,  that  the 
charge  wras  a  violation  of  sections  7  and  8  of  the  act  of  1899,  to  regulate  the 
practice  of  medicine  in  this  state — that  is,  by  professing  "to  treat,  operate  on 
or  prescribe  for  any  physical  ailment  or  any  physical  injury  to  or  deformity  of 
another,"  as  provided  in  said  section  7,  and  being  an  itinerant  vendor  of  an  appli- 


292 

« 

ance  for  the  treatment  of  diseases  or  injuries,  as  prohibited  by  section  8.  The 
finding  of  the  Appellate  Court  was  that  all  he  did  was  to  fit  spectacles  to  the 
eyes  of  persons  of  defective  vision,  and  sell  them  to  such  persons.  By  so  doing, 
the  Supreme  Court  goes  on  to  say,  he  did  not  treat,  operate  on  or  prescribe  for 
any  physical  ailment  or  injury  or  deformity  of  another,  within  the  meaning  of 
section  7;  nor  did  he,  by  advertising  himself  as  an  eye  expert,  and  inviting  per- 
sons afflicted  with  certain  defects  of  vision  to  call  on  him,  profess  to  treat,  oper- 
ate on,  or  prescribe  for  any  physical  ailment  or  physical  injury  to  or  deformity 
of  another,  but  in  the  same  advertisement  stated  that  he  did  not  give  medical  or 
surgical  treatment.  All  that  he  asserted  by  the  advertisement  was  that  glasses 
fitted  and  ground  by  his  method  benefited,  and  had  cured,  headaches,  blurring, 
itching,  and  burning  of  the  eyes,  etc.  The  Supreme  Court  also  thinks  it  clear 
that  he  was  not,  under  the  facts  here  found,  an  itinerant  vendor  of  any  drug, 
nostrum,  ointment,  or  application  of  any  kind  intended  for  the  treatment  of 
diseases  or  injury;  nor  did  he,  by  writing  or  printing,  or  any  other  method,  pro- 
fess to  the  public  to  cure  or  treat  diseases  or  deformity  by  any  drug,  nostrum, 
or  application,  within  the  meaning  of  section  8.  It  would  be  a  strained  con- 
struction of  that  section  to  hold  that  the  mere  fitting  of  spectacles  to  the  eyes 
of  a  person  is  an  appliance  intended  for  the  treatment  of  diseases  or  injury  to 
another.  This  statute  is  penal  in  its  character,  and  must  be  strictly  construed. 
It  is  a  well-known  fact  that  headaches,  dizziness,  and  other  similar  ailments, 
often  result  from  defective  vision,  which  may  be  relieved  by  the  use  of  spec- 
tacles; but  it  cannot  be  seriously  contended  that  the  person  who  sells  such  spec- 
tacles, or  who  tests  the  eyes  and  fits  such  glasses,  practices  medicine  or  surgery, 
or  professes  to  cure  or  treat  diseases  or  deformities  thereby.  While  the  statute 
under  consideration  is  a  wise  and  humane  regulation  for  the  protection  of  the 
public,  and  should  be  rigidly  enforced,  the  construction  here  contended  for  could 
have  no  other  effect  than  to  bring  it  into  disrepute.  And  the  Supreme  Court 
thinks  that,  on  the  facts  recited  in  the  judgment  below,  the  Appellate  Court  ruled 
properly  in  holding  that  the 'evidence  did  not  warrant  a  conviction. 


APPLICATION  OF   ILLINOIS   MEDICAL   PRACTICE   ACT 

People  v.  Langdon,  219  III.  189;  76  N.  E.  387 
1906 

The  Supreme  Court  denies  a  rehearing  and  reverses  the  decision  of  the  Appel- 
late and  Circuit  courts.  This  was  an  action  to  recover  the  penalty  for  practic- 
ing medicine  without  a  license  from  the  State  Board  of  Health,  imposed  by  sec- 
tion 9  of  the  act  in  force  July  1,  1899,  entitled,  "An  act  to  regulate  the  practice 
of  medicine  in  the  state  of  Illinois,  and  to  repeal  an  act  therein  named."  The 
dates  of  the  violations  of  the  act  charged  were  in  1903,  without  any  averment 
that  the  defendant  began  the  practice  of  medicine  after  July  1,  1899,  and  it  was 
contended  that  without  that  averment  no  cause  of  action  was  stated.  Thus  the 
question  raised  was  whether  a  person  who  has  no  license  to  practice  medicine, 
who  began  such  practice  before  July  1,  1899,  when  the  present  act  took  effect, 
and  continued  such  practice  thereafter  without  a  license,  is  subject  to  the  pen- 
alties named  in  section  9. 

The  Supreme  Court  says  that  it  is  clear  that  such  a  person  comes  within  the 
express  language  of  that  section.  He  is  a  person  who  is  practicing  medicine 
without  a  certificate  issued  by  the  State  Board  of  Health  in  compliance  with  the 
provisions  of  the  act,  and  who  does  not  hold  an  unrevoked  certificate  from  the 
State  Board  of  Health  issued  prior  to  the  taking  effect  of  the  act.  Having  no 
license  at  all  to  practice  medicine,  he  is  within  the  terms  of  the  statute  and 
subject  to  its  penalties. 

But  counsel  contended  that  because  section  2  only  provided  for  the  granting 
of  licenses  to  persons  entering  on  the  practice  of  medicine  after  July  1,  1899, 
when  the  act  took  effect,  the  only  persons  subject  to  the  penalties  imposed  by  sec- 
tion 9  were  those  who  began  the  practice  after  that  date.  The  Supreme  Court, 
however,  does  not  see  how  that  position  can  be  maintained.    It  says  that  the  pro- 


293 

vision  of  section  2  relied  on  is  as  follows:  "Xo  person  shall  hereafter  begin  the 
practice  of  medicine  or  any  of  the  branches  thereof,  or  midwifery,  in  this  state 
without  first  applying  for  and  obtaining  a  license  from  the  State  Board  of  Health 
to  do  so."  Taking  that  section  and  the  other  provisions  of  the  act  together, 
they  amount  to  this:  Any  person  desiring  to  enter  on  the  practice  of  medicine 
after  the  act  took  effect  could  only  do  so  after  first  applying  for  and  obtaining 
a  license  from  the  State  Board  of  Health  in  compliance  with  the  provisions  of 
the  act,  and  any  person  practicing  medicine  without  a  certificate  issued  under 
said  act,  or  an  unrevoked  certificate  issued  under  previous  acts,  was  subject  to 
certain  penalties  specified  in  section  9.  The  act  is  penal  in  character,  and  is  to 
be  strictly  construed,  but  not  with  such  technicality  as  to  defeat  its  purpose. 
When  the  true  meaning  and  intent  of  the  act  are  apparent,  the  act  is  to  be  given 
effect  in  accordance  therewith.  The  proviso  excluding  persons  practicing  med- 
icine who  hold  unrevoked  licenses  issued  by  the  State  Board  of  Health  prior  to 
the  taking  effect  of  the  present  act  cannot  be  ignored  in  interpreting  the  act, 
and  the  proviso  would  be  useless  and  senseless,  if  the  legislature  intended  the  act 
to  apply  only  to  persons  who  began  the  practice  of  medicine  after  the  act  took 
effect.  To  say  that  the  legislature  intended  to  grant  immunity  from  prosecution 
to  persons  who  were  unlawfully  practicing  medicine  at  the  time  the  act  took 
effect  would  be  wholly  unwarranted.  On  the  contrary,  an  unrevoked  license  or 
certificate  issued  under  some  previous  act  was  required  by  the  proviso. 


CONTRACT  "TO  NURSE"  A  PERSON  NOT  ONE  TO  PRACTICE  MEDICINE 

Osioald  v.  Nehls,  233  III.  438;  8}  N.  E.  619 

1908 

The  Supreme  Court  says  that  the  duties  assumed  by  the  plaintiff  under  a 
contract  set  forth  were  "to  personally  care  for  and  nurse  the  said  Ludwig  J. 
Nehls  for  and  during  the  term  of  his  natural  life."  It  was  argued  that  this  con- 
tract was  unenforceable  because  its  performance  required  the  plaintiff  to  prac- 
tice medicine  without  being  legally  licensed  so  to  do.  But  the  court  does  not 
agree  with  that  view.  The  agreement  "to  nurse"  an  adult  person  necessarily 
conveys  the  idea  that  the  object  of  the  care  is  sick  or  is  an  invalid.  It  means 
more  than  mere  watchfulness.  It  means  such  care  of  the  person  and  attention 
to  the  surroundings  as  will  conduce  to  the  comfort  and  hasten  the  recovery  of 
the  patient.  The  practice  of  medicine,  within  the  meaning  of  the  Illinois  statute 
regulating  the  practice  of  medicine,  and  as  generally  understood,  necessarily 
requires  a  knowledge  of  all  those  things  a  professional  nurse  is  supposed  to  know. 
It  embraces  much  more.  It  includes  the  application  of  knowledge  of  medicine, 
of  disease,  and  the  loss  of  health.  Neither  the  terms  of  the  contract  nor  the 
acts  done  in  performance  thereof  by  the  plaintiff  were  illegal  under  the  Illinois 
statute  relating  to  the  practice  of  medicine. 


"WELTMERISM"   IS   PRACTICE    OF   MEDICINE 

People  v.  Trenner,  14k  HI-  App.  215 

1908 

The  Appellate  Court  of  Illinois,  second  district,  says  that  this  was  an  action 
of  debt,  for  the  use  of  the  State  Board  of  Health,  to  recover  a  penalty  for  prac- 
ticing medicine  without  a  license,  contrary  to  the  provisions  of  the  act  of  1899 
regulating  the  practice  of  medicine  in  this  state.  The  defendant  did  not  take 
the  witness  stand  or  offer  any  proof  denying  the  proof  made  by  the  plaintiff, 
but  offered  in  evidence  a  pamphlet  purporting  to  be  signed  by  S.  A.  Weltmer, 
professing  to  be  an  exposition  of  the  Weltmer  method  of  healing.  This  was 
offered  as  the  evidence  that  the  defendant  would  testify  was  the  treatment  given 
by  him  if  he  had  been  sworn  as  a  witness.  Its  admission  in  evidence  was  clearly 
improper;  it  was  admitting  in  evidence  a  printed  statement  published  by  an 
irresponsible  and  unknown  person  as  the  statement  of  the  defendant  on  his  own 


294 

behalf,  without  any  opportunity  to  the  opposite  party  to  cross-examine.  If  the 
defendant  practiced  mental  suggestion  only  and  strictly  according  to  the  Welt- 
mer  method,  still  this  pamphlet  stated,  "It  is  often  very  helpful  for  the  healer 
to  magnetize  a  bottle  of  water  which  the  patient  takes  home  with  him  and 
drinks  at  stated  intervals  with  the  understanding  that  certain  beneficial  effects 
will  follow,"  and  suggests  the  use  of  "Animal  Magnetism"  and  "Electro  Biological 
Force"  through  the  laying  on  of  hands  over  the  affected  part. 

It  is  very  questionable  whether  these  practices  do  not  come  within  the  statute 
which  was  enacted  for  the  protection  of  the  citizens  of  the  state  from  such  prac- 
titioners. However,  the  defendant  in  no  way  denied  the  proof  of  manipulation 
that  was  made  on  behalf  of  the  plaintiff.  The  case  of  the  People  v.  Gordon,  194 
111.  560,  lays  down  the  rule,  that  one  who  advertises  himself  as  a  magnetic  healer 
and  who  gives  treatments  by  rubbing  or  kneading  the  body  for  the  purpose  of 
freeing  the  nerve  force,  in  the  nature  of  osteopathic  treatment,  is  not  within  the 
exception  in  favor  of  those  treating  the  sick  by  mental  or  spiritual  means,  even 
though  he  accompanied  his  treatment  by  mental  suggestion,  but  is  practicing 
medicine  within  the  meaning  of  the  statute  and  liable  to  the  penalty.  It  is 
unnecessary  for  this  court  to  say  anything  more  on  the  merits  of  this  case  as 
the  case  cited  decides  the  question  argued  by  the  appellant  against  him.  Judg- 
ment for  the  plaintiff  affirmed. 

ACT  LICENSING  ITINERANT  VENDORS   OF  NOSTRUMS   VALID 

People,  for  the  use  of  State  Board  of  Health  v.  Wilson,  249  III.  195 

1911 

A  minority  of  the  Supreme  Court  of  Illinois  interprets  and  holds  constitu- 
tional section  8  of  the  medical  practice  act  of  1899,  and  holds  that  said  section 
was  not  repealed  by  the  pharmacy  act  of  1901.  Said  section  8  provides:  "That 
any  itinerant  vendor  of  any  drug,  nostrum,  ointment  or  appliance  of  any  kind 
intended  for  the  treatment  of  diseases  or  injury,  who  shall,  by  writing  or  print- 
ing, or  by  any  other  method,  profess  to  the  public  to  cure  or  treat  disease  or 
deformity  by  any  drug,  nostrum  or  application,  shall  pay  a  license  of  one  hun- 
dred dollars  ($100)  per  month  into  the  treasury  of  the  board,  to  be  collected  by 
the  board  in  the  name  of  the  People  of  the  State  of  Illinois,  for  the  use  of  said 
board.  And  it  shall  be  lawful  for  the  State  Board  of  Health  to  issue  such  license 
on  application  made  to  said  board  .  .  .  but  said  beard  may,  for  sufficient 
cause,  refuse  said  license.     .     .     . 

It  was  contended  that  the  section  was  unconstitutional  for  the  reason  that  it 
delegated  legislative  and  judicial  powers  to  the  State  Board  of  Health  by  giving 
it  the  right  to  refuse  a  license  for  sufficient  cause  without  laying  down  any  rule 
for  its  guidance.  And  the  court  says  that  it  is  the  province  of  the  legislature, 
alone,  to  enact  law,  and  that  power  cannot  be  delegated  to  any  other  body.  A 
law  must  be  complete  in  all  its  terms  and  conditions  when  it  leaves  the  legisla- 
ture, so  that  every  one  may  know,  by  reading  it,  what  his  rights  are  and  how  it 
will  operate  when  put  into  execution.  But  this  section  is  complete  in  all  its 
terms,  and  it  does  not  confer  on  the  State  Board  of  Health  any  power  to  legislate 
or  to  make  any  law.  The  only  powers  delegated  to  the  board  pertain  to  the 
execution  of  the  law.  Had  this  section  given  the  board  arbitrary  power,  in  its 
discretion,  to  refuse  to  issue  a  license  in  any  case  it  would  then  be  open  to  the 
objection  urged.  As  it  stands,  this  section  merely  confers  on  the  board,  by 
express  terms,  that  power  and  authority  which  it  would  have  possessed  had  the 
clause  complained  of  been  entirely  omitted. 

This  statute  is  designed  to  protect  the  public  health  and  is  a  proper  exercise 
of  the  police  power  of  the  state.  The  practice  of  medicine,  which  includes  the 
itinerant  vending  of  drugs  and  nostrums,  is  subject  to  legislative  regidation  and 
control.  Had  the  clause,  "but  said  board  may,  for  sufficient  cause,  refuse  said 
license,"  been  omitted  from  this  section  of  the  act,  the  board  would  have  pos- 
sessed a  discretion,  which  it  might  exercise  to  safeguard  the  public  health,  in 
granting  or  refusing  a  license.  By  the  insertion  of  this  clause  the  board  is  given 
no  greater  power.  In  the  absence  of  either  express  restriction  or  authority  the 
board  would  have  been  vested  with  a  reasonable  discretion,  which  it  might  exer- 


295 

cise,  when  necessary,  to  safeguard  the  puhlic  health.  If  the  board  would  po 
such  power  without  express  authority  it  certainly  cannot  be  said  that  the  grant- 
ing of  that  power  in  express  terms  renders  the  act  void.  Should  the  board  abuse 
the  discretion  thus  vested  in  it  the  party  aggrieved  has  his  remedy.  If  such  dis- 
cretionary power  is  exercised  with  manifest  injustice  the  courts  are  not  precluded 
from  commanding  its  due  exercise.  They  will  interfere  where  it  is  clearly  shown 
that  the  discretion  is  abused.  Such  abuse  of  discretion  will  be  controlled  by 
mandamus. 

Under  this  act  the  State  Board  of  Health  is  not  vested  with  an  arbitrary 
discretion,  but  on  the  contrary,  is  only  authorized  to  refuse  a  license  for  suffi- 
cient cause.  Should  the  board  exercise  this  discretion  unreasonably  or  unfairly 
its  action  would  be  subject  to  review  by  the  courts.  The  act  is  not  subject  to 
the  objection  that  it  confers  legislative  powers  on  the  State  Board  of  Health. 
Nor  does  the  court  agree  with  the  contention  that,  even  though  this  act  be  valid, 
section  8  was  repealed,  by  implication,  by  the  pharmacy  act  of  1901,  so  far  as 
it  applies  to  the  itinerant  vending  of  patent  or  proprietary  medicines.  The  drug 
or  nostrum  sold  in  this  case  ("Porter's  Pain  King")  was  a  proprietary  prepara- 
tion and  bore  a  trade-mark.  It  was  sold  by  the  defendant  in  the  original  and 
unbroken  package,  and  it  was  not  claimed  that  it  contained  cocain  or  any  other 
of  the  interdicted  substances  enumerated  in  the  pharmacy  act.  The  second 
proviso  of  the  first  section  of  the  pharmacy  act  exempts  from  its  provisions  the 
sale  of  patent  or  proprietary  preparations  which  do  not  contain  cocain  and  other 
enumerated  substances,  and,  so  far  as  that  act  is  concerned,  leaves  those  prepa- 
rations free  to  be  sold  by  any  one  when  sold  in  original  and  unbroken  packages. 
The  pharmacy  act  is  not  in  reference  to  the  same  subject-matter  as  section  8  of 
the  medical  practice  act.  The  pharmacy  act  merely  provides  that  one  who  sells 
certain  patent  or  proprietary  preparations  need  not  be  a  pharmacist,  and  that 
the  provisions  of  that  act  do  not  apply  to  the  sales  of  such  preparations.  It 
contains  nothing  which  in  any  way  modifies  or  repeals  the  provisions  of  the 
medical  practice  act  regulating  the  vending  of  drugs  and  nostrums,  whether 
such  drugs  and  nostrums  be  patent,  proprietary  or  other  preparations. 

It  was  urged,  however,  that,  as  by  the  pharmacy  act  the  legislature  removed 
all  restrictions  from  the  sale  of  certain  patent  or  prietary  preparations,  that 
act  must  be  held  to  operate  to  repeal  said  section  8  in  order  to  prevent  unjust 
discrimination  between  vendors  of  the  same  patent  or  proprietary  preparations, 
and  it  was  insisted  that  it  cannot  be  made  unlawful,  on  the  ground  of  regulating 
the  practice  of  medicine,  for  a  citizen  to  sell  medicine  from  a  wagon  or  by 
traveling  from  house  to  house  when  the  same  medicine  can  be  lawfully  sold  by 
the  proprietor  of  a  grocery  or  drug  store.  This  argument  was  based  on  the 
assumption  that  itinerant  vendors  of  patent  and  proprietary  preparations  fall 
within  the  same  class  as  vendors  of  the  same  preparations  who  have  a  fixed  and 
permanent  place  of  business.  This  assumption  is  without  foundation.  A  mer- 
chant with  a  permanent  place  of  business  deals,  as  a  rule,  with  his  regular  cus- 
tomers and  sells  wares  to  such  as  come  to  buy.  He  is  not  a  stranger  in  the 
community,  and  his  character,  reliability  and  reputation  are  known.  He  has  a 
business  reputation  to  maintain  and  has  a  fixed  abiding  place  at  which  he  may 
be  found.  An  itinerant  vendor,  on  the  other  hand,  is  not  bound  by  any  of  the 
rules  which  govern  the  local  merchant.  He  may  be  an  entire  stranger  to  every 
member  of  the  communities  in  which  he  plies  his  trade.  He  has  no  business 
reputation  to  sustain.  He  is  bound  by  no  restraint  in  the  representations  he 
may  make  as  to  the  particular  drug  or  nostrum  he  offers  for  sale.  He  is  here 
to-day  and  to-morrow  is  gone,  perhaps  never  to  be  heard  of  again.  The  local 
dealer  and  the  itinerant  vendor  of  patent  medicines  are  of  separate  and  distinct 
classes.  To  regulate  the  practice  of  medicine  is  clearly  within  the  police  power 
of  the  state,  and  to  discriminate  between  peddlers  or  itinerant  vendors  of  med- 
icinal preparations  and  local  dealers  in  the  same  preparations  is  not  an  abuse 
of  that  power.  The  pharmacy  act  in  nowise  repeals  any  of  the  provisions  of 
the  medical   practice   act. 

It  was  finally  contended  by  the  defendant  that  there  was  no  proof  that  he 
was  an  itinerant  vendor  of  any  drug,  nostrum,  ointment  or  appliance  of  any 
kind  intended  for  the  treatment  of  disease  or  injury,  or  that  he  did,  by  writing 
or  printing  or  any  other  method,  profess  to  the  public  to  cure  or  treat  disease 


296 

or  deformity  by  any  drug,  nostrum  or  application.  The  evidence  disclosed  that 
the  preparation  sold  by  him  was  contained  in  bottles.  Around  each  bottle  was 
wrapped  a  printed  circular,  and  bottle  and  circular  were  inclosed  in  a  paste- 
board box.  The  circular  or  pamphlet  gave  specific  directions  for  external  and 
internal  use  in  the  treatment  of  almost  every  ailment  known  to  science  with 
which  man,  beast  or  fowl  may  be  afflicted,  representing  that  "Porter's  Pain 
King"  was  the  best  known  remedy  for  all  such  ailments  and  guaranteeing  satis- 
faction. The  pamphlet  also  contained  copies  of  a  number  of  testimonials  by 
various  persons,  in  which  wonderful  cures  of  various  ailments  were  claimed  to 
have  been  effected  by  the  use  of  the  preparation.  This  pamphlet  was  delivered, 
with  the  preparation,  to  the  purchaser.  Such  professions,  although  made  only 
to  those  who  purchased  the  nostrum,  come  within  the  clear  meaning  and  intent 
of  the  statute.  On  this  question  the  evidence  on  the  part  of  the  people  made 
out  a  case  against  the  defendant  as  an  itinerant  vendor  of  a  nostrum,  in  viola- 
tion of  the  statute. 

[Minority  opinion — majority  holds  provision  in  question  unconstitutional.] 


ABSENCE  OF  COMPENSATION  DOES  NOT  FORM  EXCEPTION  TO 

PRACTICE  ACT 

Eastman  v.  The  State,  109  Ind.  282;  10  N.  E.  91;  58  Am.  Rep.  J/00 

1887 

This  case  involves  the  constitutionality  of  the  state  medical  practice  act. 
The  Supreme  Court  says  that  the  police,  power  of  the  state  is  very  broad  and 
comprehensive  and  quotes  authorities  to  show  that  all  kinds  of  restraints  and 
burdens  on  persons  and  property  are  valid  if  their  object  is  to  secure  the  gen- 
eral comfort,  health  and  prosperity  of  the  state.  The  practice  of  medicine  and 
surgery  is  a  function  which  concerns  the  comfort,  health  and  life  of  every  person 
and  it  is  an  almost  imperious  necessity  that  only  persons  possessing  skill  and 
knowledge  should  be  permitted  to  practice.  The  power  of  the  board  to  accept  or 
reject  an  application  for  license  is  not  a  judicial  one,  although  it  may  involve  some 
exercise  of  discretion.  It  is  the  purpose  of  the  statute  to  prevent  persons  who 
do  not  possess  necessary  qualifications  from  treating  diseases,  wounds  and  injuries 
and  to  keep  out  of  the  profession  of  medicine  all  who  do  not  possess  sufficient 
learning  and  skill  to  discharge  properly  the  duties  incumbent  upon  members  of 
the  profession.  The  courts  have  no  right  to  create  an  exception  which  will 
defeat  that  intention.  It  is  immaterial  whether  the  person  who  undertakes  to 
treat  diseases  or  wounds  does  it  for  hire  or  not.  The  courts  cannot  divide  pro- 
fessional persons  into  classes  and  assert  that  one  class  is  within  the  law  and 
the  other  is  not.  The  law  applies  to  all  who  assume  the  duty  of  treating  the 
sick,  wounded  or  injured  and  applies  to  those  who  expect  compensation  for  their 
services  as  well  as  to  those  who  do  not.  It  is  not  material  whether  reward  is 
paid-  or  promised  or  whether  the  services  are  rendered  without  compensation. 
The  law  was  framed  not  to  bestow  favors  upon  a  particular  profession,  but  to 
discharge  one  of  the  highest  duties  of  the  state,  that  of  protecting  its  citizens 
from  injury  and  harm. 

EVIDENCE  OF  PRACTICING  MEDICINE  WITHOUT  A  LICENSE  A  QUES- 
TION OF  FACT  AND  NOT  OF  LAW 

Beriham  v.  The  State,  116  Ind.  112;  18  N.  E.  ',5'y 

1888 

Appellant  was  indicted  and  convicted  of  practicing  medicine  without  a  license 
and  appealed,  claiming  that  the  indictment  was  not  sufficiently  explicit.  This 
objection  was  not  sustained  by  the  Supreme  Court.  The  court  also  holds  that 
the  burden  of  proving  that  the  defendant  was  duly  licensed  to  practice  medicine 
is  on  the  defendant  and  not  on  the  prosecuting  board.  The  important  question 
in  this  case  is  whether  there  was  sufficient  evidence  in  the  record  to  justify  the 
jury  in  finding  that  the  appellant,  within  the  period  of  the  statute  of  limita- 


297 

tions,  practiced  medicine  as  charged  in  the  indictment  without  a  license  to  do  so. 
This  is  a  question  of  fact  and  not  of  law,  and  in  the  opinion  of  the  court  was 
clearly  proven. 

REFUSING  A  LICENSE— POWER   OF   BOARD 

State  ex  rel.  Burroughs  v.  Webster  et  al.,  150  Ind.  607;  50  N.  E.  150; 

1,1  L.  R.  A.  212 

1898 

This  was  an  action  for  a  writ  of  mandate,  to  require  the  state  board  of  med- 
ical registration  and  examination  to  issue  a  certificate  entitling  Burroughs  to 
a  license  to  practice  medicine,  under  the  act  of  1897.  In  his  complaint  the  rela- 
tor recites  that  he  has  been  practicing  medicine  in  Indiana  continuously  since 
Sept.  19,  1896,  under  a  license  issued  according  to  the  law  of  1885.  He  applied 
for  a  certificate  to  practice  medicine  under  the  new  law,  showing  that  he  was  a 
graduate,  in  1893,  of  the  American  Eclectic  Medical  College  of  Cincinnati,  and 
in  1897  of  the  American  Medical  College  of  Indianapolis.  The  board  has  refused 
to  issue  him  a  certificate.  Written  charges  were  filed,  charging  that  the  licenses 
received  by  him  were  obtained  by  misrepresentation  as  to  the  character  of  the 
colleges  on  whose  diplomas  the  licenses  were  granted,  and  that  he  has  been  and 
is  guilty  of  gross  immorality  in  seeking  and  obtaining  medical  practice  by  false 
and  fraudulent  representations  as  to  his  ability  to  effect  cures,  and  by  falsely 
and  fraudulently  guaranteeing  cures,  and  that  he  is  also  guilty  of  gross  immor- 
ality in  circulating  indecent  and  obscene  literature  through  the  mails  and 
through  the  community.  The  board  set  a  date  for  the  hearing  of  the  charges, 
and  immediately  served  a  copy  of  the  charges,  with  written  notice  of  the  time 
and  place  of  the  hearing  set  by  the  board,  on  the  relator. 

The  relator  was  in  the  practice  of  medicine  at  the  time  the  law  of  1897  took 
effect,  under  licenses  procured  under  the  act  of  1885.  If  the  provisions  in  sec- 
tion 2  were  all  that  were  contained  in  the  act  in  relation  to  persons  already  in 
the  practice  of  medicine  at  the  date  of  the  approval  of  the  law,  there  is  no  doubt 
that  the  relator  would  have  been  entitled  to  the  writ  of  mandate  asked  for.  The 
act  would  then  mean  that  any  one  already  practicing  medicine  by  virtue  of  a 
license  issued  under  the  old  law  would  be  entitled  to  a  certificate  and  license,  to 
be  issued  under  the  new  law.  The  simple  fact  that  a  license  had  been  given 
under  the  old  law  would  be  the  only  evidence  needed  to  entitle  him  to  a  license 
under  the  new  law.  And  this  is  what  the  relator  contends  for.  But  there  are 
provisions  in  section  5  of  the  act  which  materially  modify  the  foregoing  provi- 
sions of  section  2,  as  follows:  "The  state  board  of  medical  registration  and 
examination  shall  have  the  right  to  review  the  evidence  on  which  a  license  has 
been  obtained,  and,  if  it  shall  be  found  that  a  license  has  been  obtained  by  fraud 
or  misrepresentation,  the  board  may  revoke  such  license.  The  board  may  refuse 
to  grant  a  certificate  to  any  person  guilty  of  felony  or  gross  immorality,  or 
addicted  to  the  liquor  or  drug  habit  to  such  a  degree  as  to  render  him  unfit  to 
practice  medicine  or  surgery,  and  may,  after  notice  and  hearing,  revoke  a  cer- 
tificate for  like  cause.  An  appeal  may  be  taken  from  the  action  of  the  board." 
These  words  certainly  authorize  the  board  to  do  something  more  than  merely 
inspect  the  old  license  before  they  issue  the  certificate  for  a  new  one.  Under 
those  sweeping  provisions,  the  old  license  is  merely  prima  facie  evidence  of  a 
right  to  the  new  one.  The  board  is  given  authority  to  inquire  whether  the  for- 
mer license  was  rightfully  obtained;  and,  even  then,  if  the  applicant  is  an  unfit 
person  to  practice  medicine,  by  reason  of  criminal  conduct  or  immoral  character 
or  habits,  the  board  may  refuse  a  certificate.  Moreover,  after  the  giving  of  the 
certificate,  provided  no  license  has  been  issued  on  it,  the  board  may,  after  notice 
and  hearing,  revoke  the  same.  To  protect  the  applicant  from  any  injustice  on 
the  part  of  the  board  in  so  refusing  or  revoking  a  certificate,  the  act  provides 
for  an  appeal.  The  tribunal  of  appeal,  though  not  named  in  this  section,  is  the 
Circuit  or  Superior  Court  of  the  proper  county — the  county  of  his  residence.  It 
thus  appears  that  the  relator's  licenses,  issued  to  him  under  the  act  of  1885,  did 
not  necessarily  entitle  him  to  a  certificate  from  the  board,  unless  the  board  were 
also  satisfied,  on  examination,  that  such  licenses  were  obtained  without  fraud 
or  misrepresentation,  and,  besides,  that  the  applicant  was  morally  a  fit  person 


/ 

298 

to  engage  in  the  practice  of  medicine.  The  appellant  is  therefore  in  error  in 
contending  that  any  finding  or  judgment  of  a  court  is  necessary  to  the  revoking 
of  a  license  granted  under  the  old  law.  Such  license  was  revoked  by  the  law 
itself,  in  the  act  of  1897,  and  remains  in  force  only  until  the  board  has  acted 
on  the  application  for  the  new  license.  If  the  new  license  is  granted,  it  takes 
the  place  of  the  old  one.  If  it  is  refused,  the  applicant  has  no  right  to  practice 
medicine,  unless,  on  appeal  to  the  court  from  the  action  of  the  board,  the  board 
is  required  to  issue  a  license. 

The  legislature  has  judged  that  the  safety  of  the  public  health  requires  the 
guards  that  are  placed  around  the  practice  of  medicine  by  this  law;  and  the  court 
is  unable  to  see  that  the  act  is  not  a  valid  exercise  of  the  police  power  of  the 
state.  Had  the  board  refused  to  act  on  the  application  of  the  relator,  he  could 
undoubtedly  have  compelled  action.  But  the  petition  for  mandate  is  not  to  com- 
pel the  board  to  act  on  his  application,  but  to  compel  it  to  grant  him  certificate 
for  a  license.  This,  under  the  act,  he  cannot  compel  the  board  to  do.  The  board 
must  -act  after  investigation,  and  then  grant  or  refuse  the  application,  as  may 
be  found  right.  In  case  of  refusal,  the  statute  grants  the  right  of  appeal.  The 
relator  has  therefore  no  cause  to  complain. 

We  do  not  understand  what  failure  as  to  notice  is  shown  in  the  statute.  The 
statute  itself  is  notice  that  the  legislature  has  set  aside  the  old  licenses,  and 
given  a  reasonable  time  in  which  to  apply  for  new  licenses  in  their  place.  The 
applicant  for  a  new  license  has  presented  himself  before  the  board,  and,  of  course, 
must  be  held  to  have  notice  of  whatever  disposition  the  board  may  make  of  his 
application.  In  case  he  is  granted  a  certificate,  and  the  board  sees  fit  to  revoke 
it  before  he  has  procured  his  license,  notice  and  a  hearing  are  provided  for. 
And,  if  he  actually  receives  his  license,  it  cannot  be  revoked  until  a  formal  action 
is  had  in  court,  including  the  filing  of  a  verified  charge  against  him,  by  way  of 
complaint,  followed  by  summons,  finding,  and  judgment.  The  court  finds  no 
existence  of  failure  of  notice  in  the  statute.  The  statute  of  1897  is  a  much  more 
guarded  and  limited  exercise  of  the  police  power  in  regard  to  the  licensing  of 
physicians  than  many  that  have  been  upheld  by  the  courts  as  valid  and  con- 
stitutional. Statutes  similar  to  the  one  under  consideration,  denying  to  all  phy- 
sicians in  the  state,  lawfully  engaged  in  practice,  the  right  to  continue  such  prac- 
tice, until  they  conform  to  the  requirements  of  the  statute,  and  restricting  the 
practice  of  medicine  to  persons  who  are  able  to  demonstrate  their  qualifications, 
have  been  held  constitutional,  as  a  proper  exercise  of  the  police  power  of  the 
state  in  nearly  every  state  of  the  union  and  in  the  Supreme  Court  of  the  United 
States.  It  is  within  the  power  of  the  general  assembly  to  prescribe  qualifica- 
tions for  the  practice  of  the  professions  or  trades  named,  and  to  regulate  and 
control  these  professions,  even  to  the  point  of  taking  away  the  right  to  practice 
from  persons  lawfully  engaged  in  the  practice  who  may  be  deemed  insufficiently 
qualified  in  the  judgment  of  the  board  or  official  to  whom  the  examination  of  the 
applicant  has  been  intrusted. 

While  in  some  respects  quasi  judicial,  the  action  of  the  board  is  not  judicial 
any  more  than  is  the  action  of  a  county  surveyor  in  fixing  a  boundary  line,  or  of 
a  county  superintendent  in  giving  or  refusing  a  teacher's  certificate,  or  the  action 
of  numberless  other  officers  or  boards  in  making  investigations  and  decisions  in 
matters  committed  to  them.  Neither  is  the  circumstance  that  an  appeal  is 
allowed  from  a  decision  of  the  board  an  indication  that  its  action  is  judicial. 
The  right  of  appeal  from  the  action  of  boards  in  their  administrative  character 
is  frequently  conferred  by  statute.  The  appeal  in  such  cases  is  not  permitted 
because  the  action  of  the  board  is  considered  judicial,  but  it  is  granted  as  a 
method  of  getting  the  matter  involved  before  a  court  that  it  may  be  determined 
judicially.     Judgment  affirmed. 

VALIDITY  OF  MEDICAL  BOARDS  UPHELD— APPEALS 

Ferner  v.  State,  151  hid.  2^7;  51  N.  E.  360 

1898 

The  appellant  was  charged  by  information  with  having  unlawfully  practiced 

dentistry.     The  court  thinks  it  quite  clear  that  it  is  made  a  crime  to  practice 

dentistry  "without  being  registered."     Registry,  within  the  purpose  of  the  law, 


299 

relates  to  the  permanent  authority  to  practice  dentistry,  and  the  temporary  per- 
mit is  only  a  protection  until  the  board  shall  meet  to  make  the  registry.  The 
permit  would  be  a  bar  to  a  prosecution,  and  available  as  a  defense  to  a  charge 
of  practicing  without  registry. 

It  is  insisted,  also,  that  section  5596  is  unconstitutional,  as  in  violation  of 
section  23  of  article  1  of  the  state  constitution,  forbidding  the  granting  of  privi- 
leges which  shall  not,  on  the  same  terms,  equally  belong  to  all  citizens.  Said 
section  provides  for  the  appointment  of  a  board  of  examiners  consisting  of  five 
members,  three  of  whom  to  be  chosen  by  the  Indiana  State  Dental  Association. 
By  this  provision,  it  is  claimed,  a  special  privilege  is  given  the  Indiana  State 
Dental  Association  of  naming  members  of  the  board  of  examiners,  and  prescrib- 
ing the  standard  of  qualification.  It  is  not  necessary  that  members  of  the  asso- 
ciation shall  be  appointed  upon  the  board.  Whether  the  law  itself  should  pre- 
scribe the  standard  of  qualification,  and  whether  it  does  so,  are  questions  not 
presented.  It  is  not  objected  that  the  law  discriminates  against  the  appellant 
in  extending  the  right  to  practice  dentistry,  but  it  is  that  it  discriminates  in 
favor  of  the  dental  association  in  permitting  it  to  exercise  official  duties.  The 
power  to  appoint  is  in  the  nature  of  a  duty,  rather  than  a  privilege.  It  may  not 
be  said  to  be  a  special  privilege  any  more  than  that  conferred  on  circuit  judges 
to  appoint  city  commissioners  or  a  drainage  commissioner,  or  that  the  governor, 
the  president  of  the  state  university,  and  superintendents  of  common  schools 
shall  be  members  of  the  state  board  of  education,  or  in  many  other  instances 
where  nonjudicial  functions  are  imposed  on  judicial  officers  or  nonexecutive  func- 
tions are  cast  on  the  executive,  or  where  men,  by  reason  of  their  learning,  are 
designated  to  perform  a  service  to  the  public.  Every  man  appointed  to  an  office 
in  a  sense  enjoys  a  privilege  not  enjoyed  by  another,  but  the  appointment  does 
not  deprive  any  other  citizen  of  a  privilege;  on  the  contrary,  the  appointee  is 
an  instrument  of  the  government  to  protect  such  other  citizen  in  his  rights. 

It  has  been  suggested,  rather  than  argued,  that  the  act  in  question  does  not 
afford  due  process  of  law,  in  that  it  fails  to  extend  the  right  of  appeal  from 
decisions  by  the  board.  It  may  be  seriously  doubted  if  one  who  does  not  seek  a 
decision  of  the  board  may  complain  that  he  could  not  appeal  from  its  action. 
It  may  be  suggested,  also,  that  the  general  rule  is  that  appeals  are  recognized 
as  allowable  only  from  judicial  decisions,  and  boards  of  the  character  of  that 
in  question  do  not  render  judicial  decisions.  It  is  further  objected  that  the  evi- 
dence did  not  support  the  verdict  that  the  appellant  engaged  in  the  practice  of 
dentistry.  It  showed  that  the  appellant  leased  and  occupied  rooms  for  several 
months  for  the  declared  purpose  of  practicing  dentistry;  that  he  had  done  dental 
work  for  three  or  more  persons;  that  at  times  he  engaged  in  filling  teeth,  and 
at  other  times  did  dental  work  at  the  bench.  The  court  regards  this  as  sufficient 
to  require  the  inference  that  he  engaged  in  the  practice.  The  judgment  is 
affirmed. 


JUDGMENT  BY  AGREEMENT  VOID  WHEN  ENTERED  BY  AN  ATTORNEY 
ACTING   WITHOUT   AUTHORITY 

State  Board  of  Medical  Registration  and  Examination  v.  Coffin,  152  Ind.  439; 

53  N.  E.  458 
1899 

Eliza  E.  Coffin  filed  with  the  State  Board  of  Medical  Registration  her  applica- 
tion for  a  certificate  entitling  her  to  a  license  to  practice  medicine,  conformable 
to  the  act  of  1897.  The  board  refused  to  grant  her  a  certificate  on  the  ground 
that  she  had  been  guilty  of  gross  immorality.  She  appealed  to  the  Circuit  Court 
and  the  cause  was  put  on  the  docket  for  the  March  term.  The  only  entry  made 
was  "this  cause  is  continued."  The  next  appearance  was  on  the  second  day  of 
the  following  term,  when  a  judgment  by  agreement  was  entered  that  the  appli- 
cant was  entitled  to  a  certificate  and  that  the  board  should  issue  her  one.  From 
the  affidavits  it  appears  that  judgment  was  entered  by  agreement  by  an  attorney 
acting  for  the  prosecuting  attorney  without  authority.  The  Supreme  Court  holds 
that  such  an  agreement  is  void  and  remands  the  case  with  directions  to  set  aside 
the  judgment  by  agreement. 


300 

CHANGE  OF  RESIDENCE  REQUIRES  NEW  COUNTY  LICENSE 

May  field  v.  Nale,  26  Ind.  App.  2>,0;  59  I\T.  E.  Jf15 

1901 

The  Appellate  Court  says  that  the  statute  of  that  state  is  plain  that,  if  a 
physician  changes  his  residence  from  one  county  to  another,  he  must  ohtain  a 
new  license  in  the  county  where  he  proposes  to  reside.  This  is  a  condition  prece- 
dent to  his  right  to  practice  in  that  county,  and  it  is  made  unlawful  for 
him  to  practice  in  such  county  without  such  license.  In  consequence, 
he  cannot  maintain  an  action  for  medical  services  rendered  in  a  county,  after 
moving  thereto,  without  first  having  procured  the  requisite  license.  That  he 
may  subsequently  comply  with  the  law  will  not  enable  him  to  recover  for  serv- 
ices rendered  in  such  county  prior  to  obtaining  a  license  therein.  Whether  the 
law  that  makes  possible  such  a  defense  where  competent  professional  services 
have  actually  been  rendered  is  a  wise  one,  it  is  held,  is  not  for  the  courts  to  say. 


EVIDENCE    OF   MISREPRESENTATION    IN    PROCURING   LICENSE 

Curryer  v.  Oliver,  27  Ind.  App.  k2k;  60  N.  E.  361,;  61  N.  E.  593 

1901 

The  issue  in  this  case  was  whether  a  physician's  license  had  been  obtained  by 
fraud  and  misrepresentation,  the  misrepresentation  alleged  being  that  the  holder 
was  a  graduate  of  a  reputable  medical  college,  when  in  fact  he  was  not  a  grad- 
uate of  any  medical  college.  The  evidence  consisted  of  the  record  kept  in  the 
office  of  the  clerk  of  the  Clay  Circuit  Court,  showing  the  issuance  of  a  license 
to  the  party  under  the  act  of  1885.  The  clerk  who  made  the  record  testified  that 
the  license  would  not  have  been  issued  if  the  party  had  not  made  an  affidavit, 
and  that  the  information  as  to  the  name  of  the  university  from  which  he  gradu- 
ated and  the  date  of  his  diploma  were  taken  from  such  affidavit.  The  affidavit 
itself  could  not  be  found,  although  search  was  made  in  the  proper  place  at  various 
times.  The  book  containing  the  copy  of  the  license  was  identified  as  "The  Record 
of  Physicians'  Certificates."  It  was  kept  in  the  clerk's  office  of  Clay  county. 
No  objection  was  made  to  the  admission  in  evidence  of  this  record.  The  statute 
then  provided,  among  other  things,  that  "such  applicant  shall  pay  to  such  clerk 
for  such  license  the  sum  of  $1.50,  and  the  clerk  shall  record  such  license,  together 
with  the  name  of  the  college  in  which  such  applicant  graduated,  and  the  date  of 
his  or  her  diploma,  in  a  book  to  be  kept  for  such  purpose,  and  which  shall  be  a 
public  record."  Upon  this  evidence  there  can  be  no  doubt,  the  Appellate  Court 
of  Indiana  holds,  that  the  party  procured  a  license  upon  the  misrepresentation 
that  he  graduated  from  the  institution  named  at  the  time  named;  at  least,  it 
says,  such  inference  might  be  fairly  drawn,  the  presumption,  until  the  contrary 
is  shown,  being  that  the  clerk  properly  discharged  his  duty.  Moreover,  there  was 
introduced  in  evidence  an  affidavit  made  by  this  party  in  1897  on  which  a  certifi- 
cate of  registration  was  issued  to  him  in  which  affidavit  it  was  stated  by  him 
that  he  was  not  a  graduate  of  the  university  before  referred  to.  And  the  court 
holds  that  from  the  evidence  so  introduced,  in  the  absence  of  any  explanation 
or  denial  by  the  party,  the  ultimate  facts  charged  might  have  been  properly 
inferred,  wherefore  it  holds  that  it  was  error  to  sustain  a  motion  for  a  finding 
and  judgment  in  favor  of  the  party  on  the  evidence  at  the  close  of  the  petitioner's 
or  secretary's  evidence. 

CONSTITUTIONALITY    OF    MEDICAL    PRACTICE    ACT— POLICE    POWER 

Parks  v.  State,  159  Ind.  211;  6h  N.  E.  862;  59  L.  R.  A.  190 

1902 

The  appellant  practiced  magnetic  healing,  and  had  done  so  for  eight  years; 
he  did  not  use  medicines  or  surgery;  he  held  himself  out  as  a  magnetic  healer, 
advertised  as   such,  and  styled  himself  "Professor";    he  was  not  a   graduate  of 


301 

any  school  of  medicine,  and  had  no  license;  he  diagnosed  cases  entirely  by  the 
nerves.     On  the  8th  day  of  April,  1901,  one  Edward  Garvey  came  to  him  to  be 

treated  for  a  lame  ankle;  after  examining  the  ankle,  appellant  diagnosed  the 
case  as  rheumatism,  and  proceeded  to  give  treatment,  which  consisted,  at  least 
in  so  far  as  there  was  anything  manual  about  it,  in  holding  the  afflicted  parts 
and  rubbing  them.  An  effort  upon  the  part  of  appellant,  while  testifying  as  a 
witness,  to  describe  magnetic  healing,  was  prefaced  by  the  statement  that  "it 
is  pretty  hard  to  describe  for  people  to  understand."  At  this  point  he  was  inter- 
rupted by  the  court,  and  the  subject  does  not  seem  to  have  been  pursued  further. 
Appellant  charged  and  received  $1  for  the  treatment  that  he  gave  said  Garvey. 
There  can  be  no  question  as  to  appellant's  guilt,  if  the  act  under  which  he  was 
convicted  is  valid. 

The  prosecution  in  this  case  is  based  on  the  act  of  March  8,  1897,  and  its 
subsequent  amendments.  The  appellant  challenges  the  validity  of  the  amended 
statute  as  applied  to  him  on  the  ground  that  the  amended  statute  is  in  conflict 
with  the  fourteenth  amendment  to  the  federal  constitution. 

The  most  extensive  and  pervading  power  existing  in  the  states  by  virtue  of 
their  general  sovereignty  is  the  police  power.  There  are  doubtless  some  rights 
of  a  purely  personal  and  private  character  that  their  possessor  does  not  surren- 
der to  the  whole  people  by  becoming  a  member  of  organized  society.  But  it  is 
evident  that  he  must  concede  to  society,  in  return  for  the  enjoyment  of  its  privi- 
leges, a  large  measure  of  authority  over  his  conduct  and  possessions,  and  that  in 
the  process  of  development  from  a  rude  state  of  society  to  a  complex  civilization 
the  zone  of  personal  and  private  rights  that  are  beyond  legislative  control  must 
constantly  diminish.  The  maxim,  "Sic  utere  tuo  ut  alienum  non  lsedas"  ("So  use 
your  own  that  another  you  may  not  injure"),  is  the  source  of  the  police  power, 
and  furnishes  the  implied  condition  upon  which  every  member  of  society  possesses 
and  enjoys  his  property.  Under  the  law  of  eminent  domain,  the  owner  of  property 
is  entitled  to  compensation  when  his  property  is  actually  taken,  and,  while  the  dis- 
tinction between  the  exercise  of  this  power  and  that  of  the  police  power  may 
sometimes  be  difficult  to  perceive  in  practice,  yet  in  their  leading  theories  they 
are  broadly  differentiated,  by  reason  of  the  fact  that  if  the  imposition  of  the 
burden  or  the  control  of  the  privilege  can  be  affirmed  as  an  act  done  within  the 
scope  of  the  police  power,  under  existing  laws,  then  there  is  no  right  of  compen- 
sation. To  that  extent  must  the  individual  right  be  subordinated  to  the  public 
weal.  Until  this  power,  various  burdens  are  imposed:  Criminals  are  deprived  of 
their  liberty;  the  implements  of  crime  are  destroyed;  vice  and  pauperism  are 
controlled;  noxious  trades  are  regulated;  nuisances  are  suppressed;  children  are 
required  to  attend  school;  the  property  of  infants  and  persons  non  compos  is 
placed  in  the  control  of  others;  the  construction  of  buildings  in  populous  neigh- 
borhoods is  regulated;  provision  is  made  for  the  greater  safety  of  passengers  upon 
railways  and  steamboats;  employers  are  required  to  provide  safe  places  in  which 
the  work  of  their  employees  is  to  be  performed;  the  hours  of  work,  in  employ- 
ments deleterious  to  the  health,  limited;  the  employment  of  children  in  factories 
prohibited;  pure-food  laws  are  enacted;  physicians,  dentists,  and  druggists  are 
licensed;  and  so  the  list  might  be  almost  indefinitely  expanded  by  specific  instances 
of  authorized  legislative  regulations  enforcing  the  social  compact,  for  the  protec- 
tion of  life,  health,  morals,  property,  and  the  general  weal  of  the  community, 
until  Ave  perceive  that  definition  is  impossible,  and  that  the  whole  matter  of  the 
legislative  element  of  sovereignty,  as  opposed  to  individual  liberty,  must,  in  the 
absence  of  other  constitutional  restriction,  be  left,  as  the  federal  supreme  court 
has  declared,  to  the  gradual  processes  of  judicial  inclusion  and  exclusion,  as  the 
cases  presented  for  decision  require. 

For  hundreds  of  years  the  matter  of  the  conservation  of  the  public  health  has 
been  a  leading  matter  of  police  control.  If  a  man  holds  himself  out  to  the  com- 
munity as  a  person  skilled  in  the  science  of  healing,  and  on  that  ground  seeks 
the  opportunity  to  exercise  the  skill  he  claims  to  possess,  his  business  becomes 
impressed  with  a  public  character,  and  he  is  therefore  subject  to  reasonable  regu- 
lation in  its  prosecution. 

Counsel  for  appellant  denounce  the  law  in  question  as  "an  attempt  to  deter- 
mine a  question  of  science,  and  control  the  personal  conduct  of  the  citizen  without 
regard  to  his  opinion,  and  in  a  matter  in  which  the  public  is  in  no  wise  concerned." 


302 

The  court  thinks  that  the  matter  is  one  of  very  considerable  concern,  and  that  the 
legislature  is  the  appropriate  tribunal  to  determine  the  degree  of  learning  that 
those  who  gain  a  livelihood  by  seeking  to  relieve  the  bodily  ailments  of  others 
should  possess.  While  it  is  true  that  the  often-quoted  definition  of  "police"  power 
afforded  by  Chief  Justice  Shaw,  contains  the  limitation  that  such  laws  must  be 
wholesome  and  reasonable,  yet  it  is  evident,  as  the  power  to  enact  laws  has  been 
confided  to  the  legislative  department,  that  a  very  large  measure  of  authority  is 
vested  in  that  department  to  determine  what  is  reasonable  and  wholesome  in  the 
enactment  of  statutes  under  the  police  power.  The  courts  would  never  venture  to 
run  a  race  of  opinion  with  the  legislature  upon  questions  of  mere  expediency. 
Such  a  course  would  be  a  gross  judicial  usurpation  of  power. 

Appellant's  counsel  objects  to  the  classification  that  the  statute  provides  for, 
on  the  ground  that  it  is  unjust  and  arbitrary.  In  the  exercise  of  the  police  power 
there  must  needs  be  a  considerable  discretion  vested  in  the  legislature,  whereby 
some  people  have  rights  or  suffer  burdens  that  others  do  not.  If  the  objection 
mentioned  has  any  real  basis,  the  statute  must  be  condemned  by  the  courts.  The 
statute  of  a  state  that  deprives  any  person  of  his  life,  liberty,  or  property  without 
due  process  of  law,  or  that  denies  to  any  person  within  the  jurisdiction  of  the 
state  the  equal  protection  of  the  laws,  cannot  be  upheld  on  the  theory  that  it  is 
an  exercise  of  the  power  of  classification.  It  is  undoubtedly  true,  as  stated  by 
Judge  Cooley,  that  a  proper  exercise  of  the  police  power  cannot  come  in  conflict 
with  the  national  jurisdiction,  the  ultimate  test  of  propriety  must  be  found  in 
the  limitations  of  the  fourteenth  amendment,  since  it  operates  to  hedge  in  the 
field  of  the  police  power  to  the  extent  of  preventing  the  enforcement  of  statutes 
in  denial  of  the  rights  that  the  amendment  protects.  Especially  in  cases  where 
statutes  are  enacted  that  deny  to  persons  the  right  to  follow  their  accustomed 
vocations  in  life,  while  the  same  right  is  granted  to  others,  are  the  courts  insistent 
that  there  must  be  some  substantial  basis  in  reason  and  justice  for  the  discrimina- 
tion. In  cases  where  there  is  room  for  the  presumption  that  a  substantial  and 
just  reason  furnished  the  basis  for  legislation  enacted  in  the  carrying  out  of  a 
public  purpose,  the  exercise  of  the  legislative  discretion  in  the  establishing  of  a 
classification  must  be  respected  by  the  courts. 

The  court  does  not  think  that  there  is  involved  in  this  case  a  question  as  to 
the  authority  of  the  legislature  to  discriminate  against  a  particular  school  of 
practitioners.  It  is  not  judicially  advised  that  magnetic  healing,  so  called,  is  so 
far  based  on  co-ordinated,  arranged,  and  systematized  knowledge  that  it  can  be 
termed  a  science,  or  that  any  considerable  degree  of  instruction  is  a  prerequisite 
to  its  prosecution,  as  it  is  actually  practiced  by  those  whose  knowledge  does  not 
go  beyond  the  manifestation  of  the  phenomena  of  magnetism.  It  may  have  been 
the  judgment  of  the  legislature,  in  its  implied  exclusion  of  appellant,  that  both  the 
limitations  of  value  that  the  treatment  possessed  and  the  dangers  attending  it 
made  it  wise  to  confine  its  use  to  a  body  of  men  in  whose  hands  it  would  be  safer 
to  intrust  it,  because  of  their  education  in  subjects  relevant  to  its  administration. 
The  legislature,  in  judging  of  a  matter  of  this  kind,  was  authorized  to  give  heed 
to  the  opinions  of  scientific  men,  and,  presuming  that  it  did  so,  it  doubtless  found 
substantial  reason  for  the  act  of  exclusion  complained  of.  Judged  by  such  author- 
ity, it  appears  that,  while  the  practice  of  magnetic  healing  is  based  on  some 
elements  of  ascertained  knowledge,  yet  that  its  prosecution  is  attended  with  danger 
to  such  a  degree  that  the  legislature  was  justified  in  its  effort  to  take  it  out  of 
hands  of  empirics.  The  statute  in  question  goes  no  further  than  to  establish  a 
standard  that  may  be  attained  by  reasonable  application,  and  the  means  has  an 
appropriate  relation  to  the  end.  There  is  plainly,  as  applied  to  the  case  in  hand, 
no  arbitrary  or  unreasonable  deprivation  of  right,  neither  is  the  classification 
unreasonable  or  arbitrary. 

The  court  also  holds  that  the  contention  that  the  statute  of  1901  is  invalid 
for  the  want  of  a  sufficient  title  is  not  sound.  It  is  not  required  that  the 
title  to  an  act  should  be  an  epitome  of  the  act.  It  is  the  "subject"  of  the 
act,  and  not  the  "matters  properly  connected  therewith,"  that  the  constitution 
requires  to  be  "expressed  in  the  title."  It  was  certainly  competent  for  the  legis- 
lature to  submit  a  fairly  relevant  definition  of  the  "practice  of  medicine." 
The  court  is  not  called  upon  to  determine  whether  all  of  the  acts  mentioned 
can    properly    be    denominated    as    practicing    medicine.       It    is    only    necessary 


303 

to  determine  whether  the  appellant  has  brought  himself  within  the  statutory 
definition  of  the  practice  of  medicine,  in  so  far  as  the  acts  therein  men- 
tioned can  be  said,  in  a  substantial  sense,  to  amount  to  practicing  medicine. 
The  term  "practice  of  medicine"  is,  at  least  in  its  popular  sense,  generic  in  its 
character. 

The  court  concludes  that  appellant  was  engaged  in  the  practice  of  medicine, 
since  he  held  himself  out  as  a  magnetic  healer,  and  his  method  of  treatment  was, 
at  least  in  part,  the  method  that  medical  practitioners  sometimes  employ.  If 
it  was  competent  for  the  legislature  to  have  enacted  the  amendment  of  1901,  as 
a  part  of  the  act  of  1897,  it  is  immaterial  whether  the  acts  on  which  appellant's 
conviction  was  based  were  or  were  not  a  violation  of  law  in  the  interim.  As  the 
act  of  1901  is  now  a  part  of  the  law  of  1897,  it  follows  that  appellant  was  prop- 
erly convicted.     The  judgment  is  affirmed. 


RIGHTS   OF  STATE   BOARDS  TO  REVOKE  LICENSES 

Spurgeon  et  al  v.  Rhodes,  161  Ind.  1;  18  JV.  E.  228 

1906 

The  Supreme  Court  of  Indiana  holds  that  it  was  error  to  grant  a  temporary 
injunction,  on  the  application  of  the  latter-named  party,  restraining  the  members 
of  the  State  Board  of  Medical  Registration  and  Examination  from  proceeding  to 
hear  and  determine  charges  of  "gross  immorality"  pending  against  him  before 
said  board  and  from  revoking  his  license  to  practice  medicine.  It  says,  among 
other  things,  that  the  allegation  in  the  complaint  to  the  effect  that  a  certain-named 
woman  was  employed  to  procure  evidence  in  regard  to  his  character  was  .not 
denied,  but  this  alone  would  not  authorize  the  granting  of  a  temporary  injunction. 
The  gist  of  the  complaint  was  that  the  defendants  had  prejudged  his  case  and 
had  intended  to  revoke  his  license  without  any  evidence  and  without  giving  him 
a  hearing.  The  affidavits  of  five  members  of  the  board  and  their  attorneys  denied 
the  charge,  and  said  in  effect  that  they  intended  to  and  would  give  him  a  fair 
and  impartial  hearing,  and  would  determine  the  charges  according  to  the  evidence. 
This  was  all  that  he  was  entitled  to  demand.  The  fact  that  the  woman  mentioned 
was  not  in  the  state  and  could  not  be  compelled  to  attend  the  hearing  of  the 
charges,  or  that  the  board  would  try  the  charges  without  her  presence  or  testi- 
mony, furnished  no  ground  for  enjoining  the  board  from  hearing  and  determining 
the  truth  of  the  charges. 

It  was  insisted  that  the  temporary  injunction  was  properly  granted  for  the 
reason  that  section  7322  of  Burns'  Annotated  Statutes  of  Indiana  of  1901,  under 
which  the  charges  in  question  were  presented  to  the  board,  so  far  as  it  attempted 
to  confer  on  the  board  the  power  to  try  complainant  and  determine  whether  or 
not  he  was  guilty  or  not  of  the  gross  immorality  charged,  and  to  revoke  or  refuse 
to  revoke  his  license  therefor,  was  wholly  unconstitutional  and  void,  in  that  it 
attempted  to  confer  on  the  board  such  judicial  power;  that  it  was  in  violation  of 
the  fifth  amendment  of  the  Constitution  of  the  United  States,  which  provides  that 
"no  person  shall  be  held  to  answer  for  a  capital  or  other  infamous  crime  unless 
on  a  presentment  or  indictment  by  a  grand  jury,"  and  of  the  sixth _  amendment, 
which  provides  that  "in  all  criminal  prosecutions  the  accused  shall  enjoy  the  right 
.  .  .  to  have  compulsory  process  for  obtaining  witnesses  in  his  favor";  and  that 
it  violated  the  provision  of  said  Constitution  that  "the  trial  of  all  crimes  except 
in  cases  of  impeachment  shall  be  by  jury."  But  the  court  says  that  these  provi- 
sions apply  only  to  proceedings  and  prosecution  in  the  courts  of  the  United 
States  and  laws  enacted  by  Congress;  not  to  laws  enacted  by  the  legislatures  of 
the  states. 

Statutes  prescribing  the  qualifications  of  practitioners  of  medicine  and  sur- 
gery, and  otherwise  regulating  the  practice  of  those  professions  have  been  uni- 
formly upheld  by  the  courts  as  a  valid  exercise  of  the  police  power  of  the  states, 
infringing  no  provisions  of  either  federal  or  state  constitutions.  Statutes  con- 
taining a  provision  like  the  one  in  question  here,  authorizing  the  board  to  revoke 
a  license  when  the  holder  has  been  guilty  of  a  felony  or  of  gross  immorality,  have 
been  held  not  to  violate  any  provision  of  the  federal  or  state  constitutions,  and  it 


304 

has  been  held  that  the  granting  or  refusing  to  grant  a  license  to  practice  medicine, 
or  the  revocation  thereof  by  the  board,  is  not  the  exercise  of  judicial  power. 


PRACTICING  MEDICINE  WITHOUT  A  LICENSE 

Melville  v.  State,  113  hid.  352;  89  N.  E.  1,90 

1910 

The  Supreme  Court  says,  where  it  affirms  a  conviction  of  practicing  medicine 
without  a  license,  that  the  accused  argued  that  a  diploma  held  by  him  from  a 
school  of  osteopathy  at  the  time  the*  law  went  into  effect  entitled  him  to  a  license 
to  practice  medicine,  and  having  applied  to  the  Board  of  Medical  Examination 
for  a  certificate,  and  exhibited  and  filed  with  the  board  his  diploma  and  paid  the 
legal  fees,  and  done,  as  he  averred,  all  that  he  was  required  by  the  law  to  do, 
and  his  license  being  wrongfully  withheld,  he  had  a  right  to  practice  medicine. 
But  in  this  contention  he  fell  into  error. 

The  mere  delivery  of  the  diploma  to  the  board,  and  the  payment  to  it  of  $10 
as  a  fee,  of  themselves  amounted  to  nothing.  Calling  the  money  paid  a  license 
fee  did  not  make  it  a  license  fee.  The  Indiana  statute  requires  the  payment  of 
$10  to  the  board  as  an  examination  fee,  to  determine  whether  the  candidate  for 
license  is  a  fit  person  to  receive  it.  The  payment  of  the  $10  secures  to  the  can- 
didate no  privilege  or  advantage  beyond  the  right  to  an  examination  by  the  board 
as  to  fitness  to  exercise  a  license.  And  because  the  contrary  was  not  alleged,  the 
court  infers  that  the  accused  never  had  an  examination  by  the  state  board,  or, 
if  he  had  one,  he  failed  to  prove  himself  qualified  and  entitled  to  a  certificate; 
and  if  he  had  in  fact  received  a  certificate,  that  he  never  presented  it  to  the 
county  clerk,  and  requested  the  issuance  of  a  license  on  it.  If  either  of  these 
assumed  facts  existed,  he  was  not  entitled  to  a  license. 

Again:  According  to  his  plea,  he  had  no  qualification,  or  right,  to  a  license  to 
practice  medicine  beyond  that  conferred  by  his  diploma  from  a  Chicago  school 
of  osteopathy.  If  the  court  granted  that  the  school  that  issued  to  him  the 
diploma  was  a  reputable  and  an  approved  school  of  osteopathy,  that  would  not 
strengthen  the  answer.  His  failure  to  affirm  that  he  was  practicing  osteopathy 
only  was  equivalent  to  an  admission  that  he  was  practicing  medicine  generally, 
and  the  very  most  he  could  claim  the  right  to  do  was  to  practice  osteopathy. 

Nor  was  there  error  in  denying  to  the  accused  the  right  to  read  in  evidence,  as 
a  license  to  practice  medicine,  the  receipt,  given  by  the  secretary  of  the  board 
for  "ten  dollars  in  payment  of  legal  fee  on  diploma  for  certificate."  The  receipt 
was  not  a  license,  and  furnished  the  accused  no  excuse  for  the  violation  of  a 
.specific  requirement  of  the  law.  Even  if  he  had  shown  that  he  was  entitled,  and 
that  a  license  wag  arbitrarily  withheld,  it  would  have  afforded  him  no  sufficient 
justification  to  practice  medicine.  If  a  license  was  wrongfully  withheld,  his 
remedy  was  to  proceed  by  appeal,  or  some  other  appropriate  action  to  obtain  it. 


UNLAWFUL  PRACTICE  OF  MEDICINE  BY  A  "D.  S.  T." 

Witty  v.  State  (hid.),  90  ~N.E.  621 

1910 

The  Supreme  Court  says,  that  the  party  appealing,  the  defendant  in  the  court 
below,  who  claimed  to  be  a  graduate  of  an  institute  of  suggestive  therapeutics, 
and  in  one  of  his  advertisements  appended  the  letters  "D.  S.  T."  to  his  name, 
was  charged  with  practicing  medicine  without  a  license,  in  violation  of  the  statute. 
The  evidence  established  that  he  held  himself  out  and  advertised  to  the  public 
by  a  sign  in  his  office,  and  by  publication  in  a  local  newspaper,  that  he  was  a 
"doctor,"  and  capable  and  competent  to  successfully  treat  all  forms  of  chronic  dis- 
eases. He  notified  all  persons,  through  the  public  press,  that  he  was  not  only  a 
"doctor,"  but  that  as  such  he  was  a  specialist  in  the  treatment  of  chronic  diseases. 
He  further  advised  them  that  he  was  capable  of  curing  the  many  diseases  men- 
tioned in  his  advertisement  without  medicine  or  surgery,  and  that  there  were 
but  few  of  the  many  diseases  which  did  not  yield  to  his  drugless  treatment. 


305 

The  mere  fact  alone  that  in  hie  practice  lie  did  not  use  drugs  in  any  form  what- 
ever as  a  medicine  to  cure  or  heal  the  many  diseases  which  he  professed  to  suc- 
cessfully treat  did  not  place  him,  in  the  eyes  of  the  statute,  within  its  meaning 
in  the  position  of  one  not  engaged  in  the  practice  of  medicine.  The  term  "doctor," 
as  defined  by  the  lexicographers,  signifies  or  means,  in  one  respect,  a  person  who 
practices  medicine.  Consequently,  when  the  defendant  held  himself  out  to  the 
public,  and  advised  them  that  he  was  a  "doctor"  located  in  the  city;  that  he 
had  certain  office  hours — he  gave  all  persons  to  understand  and  be  informed  that 
he  was  at  least  engaged  in  the  practice  of  healing  or  curing  suffering  humanity 
of  diseases  by  some  method  or  means  adapted  to  that  purpose,  notwithstanding 
the  fact  he  disclaimed  the  use  of  medicine  of  the  character  of  drugs  in  his  treat- 
ment of  the  diseases  mentioned.  He  did  not  profess  in  his  advertisement  to  be 
but  a  mere  masseur  engaged  in  giving  massage  treatment  to  all  persons  who 
might  desire  such,  or  who  had  been  advised  by  their  physician  to  take  such  treat- 
ment. He  undertook  to  show  by  his  advertisement  that  he  was  learned  in  his 
profession,  and  competent  to  diagnose  diseases  and  prescribe  the  treatment  neces- 
sary for  a  cure. 

His  counsel  insisted  that  while  it  was  true  that  he  was  shown  to  have  had 
an  office,  that  he  advertised  and  held  himself  out  as  a  doctor,  "and  was  ready  to 
and  did  administer  to  the  wants  of  the  sick,  he  did  so  exclusively  by  mental  sug- 
gestion and  by  manual  rubbing,  and  did  not  pretend  to  practice  medicine  in  any 
shape  or  form."  But  the  mere  fact  that  he  did  not  administer  to  his  patients 
drugs  in  any  form  or  manner,  but  confined  his  treatment  to  rubbing  their  afflicted 
parts,  could  not  be  held  to  except  him  from  the  provisions  of  the  statute.  If  he, 
under  the  facts  in  this  case,  could  be  held  as  not  corning  within  the  provisions  of 
the  statute,  then  any  person  unlicensed  to  practice  medicine  might  hold  himself 
out  to  the  public  as  a  doctor,  and  treat  all  classes  of  diseases  without  administra- 
tion of  drugs,  and  not  offend  against  the  statute.  Such  a  construction  of  the  law 
would  be  inconsistent  with  its  letter  and  spirit.  The  very  object  or  purpose  of 
the  statute  is  to  protect  the  sick  and  suffering  and  the  public  at  large  against 
the  ignorant  and  unlearned  by  prohibiting  them  from  holding  themselves  out  to 
the  world  as  doctors  or  physicians  without  having  acquired  any  knowledge  what- 
ever of  the  human  system,  or  the  diseases  and  ailments  with  which  it  may  be 
afflicted. 

The  defendant  under  the  facts  was  properly  convicted,  and  the  judgment  of 
conviction  is  therefore  affirmed. 


POWER  OF  CONTINUING  REGULATION  SUSTAINED 
State  v.  Mosher,  18  la.  321;  1,3  N.  W.  202 

1889 

The  defendant  was  tried  upon  information  before  a  justice  of  the  peace,  and 
convicted.  On  appeal  to  the  district  court  there  was  another  conviction,  and  judg- 
ment, from  which  he  appeals  to  this  court. 

The  defendant  was  convicted  of  practicing  medicine  and  surgery  without  a 
certificate. 

The  record  discloses  that  the  defendant  applied  to  the  board  of  medical  exam- 
iners for  a  certificate  to  practice  medicine,  and  with  it  he  filed  his  affidavit  show- 
ing that  he  was  52  years  of  age;  that  he  was  a  resident  of  Sioux  City,  and  had 
practiced  medicine  and  surgery  there  since  October,  1875.  The  record  further 
discloses  that  the  defendant  was  to  some  extent  examined  by  the  board  touching 
his  qualifications  for  the  practice.  To  such  an  examination  the  defendant  then 
objected,  claiming  that  under  the  law  he  was  entitled  to  his  certificate  upon  the 
evidence  as  to  his  former  practice,  and  that  under  the  law  he  was  not  required 
to  submit  to  an  examination.  The  record  of  the  board  of  medical  examiners,  as 
it  appears  in  evidence,  shows  that  the  certificate  was  refused  for  two  reasons: 
First,  because  of  insufficient  evidence  to  show  that  the  defendant  had  practiced 
for  the  time  and  as  required  by  law;  and,  second,  the  examination  furnished 
palpable  evidence  of  his  incompetency. 

1.  The  argument  of  appellant  deals  largely  with  the  constitutionality  of  the 
act  under  which  the  certificate  was  refused.    The  argument  in  this  respect  is  based 


306 

upon  assumptions  of  fact  and  law,  as  follows :  ( 1 )  That  the  real  grounds  for 
refusing  the  certificate  by  the  board  was  a  finding  of  incompetency.  (2)  That  as 
a  legal  proposition,  under  the  act  in  question,  if  it  was  a  fact  that  the  defendant 
had  practiced  the  profession  both  as  to  time  and  place  as  specified  in  the  act,  he 
was,  as  a  matter  of  right,  entitled  to  the  certificate.  (3)  Under  such  an  appli- 
cation the  board  has  no  right  to  inquire  as  to  the  competency  of  the  applicant 
before  granting  the  certificate.  These  assumptions  are  not  thus  arranged  or  stated 
in  terms  in  argument,  but  they  are  our  understanding  of  the  position  of  counsel. 
The  affidavit  as  to  the  time  and  place  of  practice  is  undisputed,  and  appellant  is 
disposed  to  treat  it  as  a  legally  established  fact.  At  the  trial  in  the  district 
court  the  defendant  attempted  to  prove  as  defensive  matter  that  his  application 
for  a  certificate  was  based  entirely  on  the  facts  as  to  his  prior  practice,  and 
attempted  to  show  the  facts  as  to  such  practice,  which  the  court  refused,  holding 
that  the  fact  that  he  had  practiced,  and  without  the  certificate,  was  conclusive 
against  him.  Appellant  contends  that  if  this  holding  of  the  district  court  is 
correct,  then  a  law  investing  the  board  with  such  absolute  power  to  deprive  a 
person  of  his  professional  or  property  rights  is  unconstitutional  on  several 
grounds,  and  among  them,  that  the  deprivation  is  without  due  process  of  law. 
That  the  holding  of  the  district  court  in  this  respect  is  correct,  we  entertain  no 
doubt, — that  is,  we  entertain  no  doubt  that  such  is  the  intent  of  the  act.  The 
act  plainly  provides  that  the  qualifications  prescribed,  when  ascertained,  shall 
be  evidenced  by  a  certificate  of  the  board,  and  that  the  certificate  shall  be 
recorded  in  the  county  where  the  holder  resides;  and  the  record  must  show  the 
facts  upon  which  the  certificate  was  granted.  The  certificate  or  record  is  the 
proper  evidence  of  qualification,  and  the  offense  consists  in  the  practice  of  the 
profession  without  first  procuring  the  certificate.  This  holding  disposes  mainly 
of  the  questions  as  to  introduction  of  testimony. 

The  questions  presented  as  to  the  invalidity  of  the  act  are  only  available  for 
consideration  if  it  be  held  that  the  board  at  the  time  of  the  application  could 
only  inquire  as  to  the  time  and  place  of  practice,  and  that  the  examination  as 
to  competency  is  unauthorized,  because  we  can  only  adjudge  a  law  invalid  or 
unconstitutional  in  a  case  where  a  party  is  to  be  deprived  of  his  rights  in  conse- 
quence of  the  invalidity  of  the  law.  If  the  law  in  this  case  authorized  an  exami- 
nation as  to  competency,  and  the  certificate  was  legally  refused  because  of  incom- 
petency, the  case  furnishes  no  grounds  of  complaint,  even  if  the  law  is  invalid 
in  other  respects. 

The  court  inquires  as  to  the  right  of  the  board  to  examine  as  to  the  compe- 
tency of  the  applicant  for  a  certificate  where  the  application  is  based  on  the 
fact  of  a  five-years'  practice.  The  term  "prima  facie  qualifications"  is  used  to 
avoid  an  inference  that  certificates  granted  under  the  "tests,"  as  there  mentioned, 
were  conclusive  thereafter  as  to  qualifications.  Counsel  for  appellant  have 
assumed  in  the -argument  that  no  such  right  of  examination  is  given  the  board. 
Under  the  language  of  the  section  it  could  hardly  be  doubted  that  the  board, 
after  the  granting  of  a  certificate,  could  in  some  manner  make  inquiry  as  to  the 
competency  of  the  holder,  and,  if  palpably  incompetent,  revoke  it.  In  such  a  case 
the  certificate  would  only  be  prima  facie  evidence  in  his  favor.  The  effect  of  the 
certificate  might  be  overcome  by  other  evidence.  It  certainly,  then,  is  not  a  fact 
that  either  the  certificate  or  the  fact  of  the  five-year  practice  gives  to  the  holder 
or  the  practitioner  the  absolute  right  to  practice,  but  at  the  foundation  of  his 
claim  lies  the  question  of  competency.  Such  is  the  very  spirit  and  purpose  of  the 
law,  and  in  its  construction  care  should  be  taken  to  subserve  that  purpose.  The 
court  inquires  after  the  legislative  intent.  The  section  says  that  the  board  may 
refuse  to  grant  the  certificate  if  the  applicant  has  been  convicted  of  felony  com- 
mitted in  the  practice  of  his  profession.  It  must  be,  then,  that  the  board  may 
inquire  after  that  fact,  for  it  may  either  refuse  or  revoke  for  that  cause;  and 
we  reach  the  query,  may  it  refuse  or  revoke  for  incompetency?  The  language  in 
this  respect  is  not  as  decisive  as  with  regard  to  felony,  but  it  is  clearly  the  law. 
It  is  an  unreasonable  and  impolitic  construction  to  hold  that  upon  such  an  appli- 
cation with  the  board  in  possession  of  facts  to  justify  an  inquiry  as  to  the  compe- 
tency of  the  party,  if  in  possession  of  a  certificate,  that  it  must  grant  the  certifi- 
cate, and  at  once  proceed  to  revoke  it.  Before  holding  to  that  view,  the  language 
should  be  clear  and  unmistakable  in  its  import.    Nothing  more  can  be  said  of  the 


307 

language  of  the  law  under  consideration  than  that  it  is  of  doubtful  meaning,  and 
that  the  doubt  extends  only  to  the  query,  which  of  the  two  constructions  should 
prevail?  The  court  thinks  the  legislative  purpose  is  best  Bubaerved  by  holding 
that  the  board,  upon  the  application  of  the  defendant,  had  the  right  to  inquire 
as  to  his  competency,  and  that  the  established  fact  of  his  prior  practice  was  no 
more  than  equivalent  to  the  possession  of  a  certificate,  which  might  be  overcome 
by  a  showing  of  palpable  incompetency. 

The  defendant,  in  his  testimony,  denies  having  been  examined  before  the 
board  as  to  competency,  but  his  testimony  in  this  respect  is  conclusively  over- 
come by  the  record.  His  examination,  as  shown  by  the  abstract  of  appellant,  is 
brief,  and  in  these  words:  "Dr.  S.  Mosher  was  sworn.  Said  his  name  was  Sidney 
Mosher.  That  he  was  fifty-two  years  of  age.  Says  he  began  reading  medicine 
in  New  York  state,  when  17  years  old,  with  Kelly  &  Robinson,  near  Batavia. 
Never  attended  lectures.  Been  in  the  practice  about  twenty  years.  Began  treat- 
ment of  medicine  before  the  war.  Began  in  Iowa,  when  government  first  required 
revenue  tax.  Said  he  did  a  general  practice.  Did  but  little  surgery.  Could  not 
say  how  many  cavities  were  in  the  heart.  Cannot  give  the  origin  or  insertion  of 
any  one  muscle  in  the  body.  Select  any  one?  Said  he  could  not  answer  now. 
He  was  not  prepared  to  be  examined.  Can  you  give  the  therapeutic  action  of  any 
drug?  Did  not  answer.  Can  you  give  the  curative  action  of  any  single  drug  and 
you  select  the  drug?  Could  not  say."  The  examination  discloses  that  the 
defendant  was  either  palpably  incompetent,  or  stubbornly  silent,  in  either  of 
which  cases  he  has  no  grounds  for  complaint  as  to  the  action  of  the  board.  If  he 
knew,  and  would  not  tell,  the  board  was  justified  by  his  misconduct  in  believing 
him  incompetent.    If  he  did  not  know,  the  result  is  a  vindication  of  the  law. 

It  is  urged  that  the  defendant  is  not  amenable  to  the  penal  provisions  of  the 
act  because  of  the  exceptions  contained  in  section  8  regarding  physicians  who 
have  been  in  practice  in  the  state  for  five  consecutive  years,  three  years  of  which 
shall  have  been  in  one  locality;  provided  such  physicians  shall  furnish  the  state 
board  of  examiners  satisfactory  evidence  of  such  practice,  and  shall  procure  the 
proper  certificate,  as  provided  by  this  act.  It  is  true,  the  defendant,  as  a  five- 
years  practitioner,  is  mentioned  in  the  exceptions,  but  before  he  can  make  the 
provisions  of  the  section  as  to  exceptions  available  to  him,  he  must  comply  with 
the  proviso,  and  present  to  the  court  "the  proper  certificate."  This  he  has 
failed  to  do. 

It  is  said  that  the  examination  of  the  defendant  was  not  legal,  because  not  in 
writing,  as  required  by  law.  The  abstract  does  not  disclose  the  character  of  the 
examination  in  this  respect.  The  court  discovers  nothing  in  the  record  to  reverse 
the  judgment,  and  it  is  affirmed. 


MEDICAL   BOARD   NOT   VESTED    WITH   ARBITRARY   POWERS 

Iowa  Eclectic  Medical  College  Ass'n  v.  Schrader  et  al.,  Board  of  Medical  Exam- 
iners, 87  la.  659;  55  N.  W.  24;  20  L.  R.  A.  355 
1893 

Action  by  writ  of  certiorari  to  inquire  into  the  legality  of  certain  action  of 
the  defendant  board  with  respect  to  the  plaintiff  college.  Judgment  was  entered 
in  the  district  court  dismissing  the  petition,  from  which  judgment  plaintiff 
appeals. 

The  inquiry  is  whether  the  defendant  has  "exceeded  his  proper  jurisdiction, 
or  is  otherwise  acting  illegally."  When  the  defendant  has  jurisdiction,  and  is 
given  a  discretion,  the  courts  cannot,  on  certiorari,  inquire  into  the  correctness 
of  its  decisions  upon  matters  of  fact,  nor  review  the  exercise  of  the  discretion 
given.  Our  inquiry  is  exclusively  as  to  jurisdiction  and  legality  of  action,  and 
if  jurisdiction  existed,  and  the  action  was  legal,  we  must  affirm,  even  though 
the  motive  was  wrongful.  The  plaintiff  was  a  legally  incorporated  and  organized 
medical  college,  carried  on  for  the  purpose  of  giving  instructions  in  medicine  and 
surgery,  and  to  confer  degrees  upon  and  issue  diplomas  to  its  graduates.  The 
defendants  constituted  the  board  of  medical  examiners  of  the  state.  It  is 
required    by   the     statute   that    every   person   practicing   medicine,    surgery,   or 


308 

obstetrics  within  this  state  shall  first  procure  a  certificate  from  the  board  of 
medical  examiners  of  his  right  to  do  so.  Section  2546  provides,  "If  the  diploma 
is  found  genuine,  and  is  issued  by  a  medical  school  legally  organized  and  in  good 
standing,  of  which  the  state  board  of  examiners  shall  determine,  and  if  the 
person  presenting  and  claiming  such  diploma  be  the  person  to  whom  the  same 
was  originally  granted,  then  the  state  board  of  examiners  shall  issue  its  certifi- 
cate to  that  effect,  signed  by  not  less  than  five  physicians  thereof,  representing 
one  or  more  physicians  of  the  schools  on  the  board,  and  such  certificate  shall  be 
conclusive  as  to  the  right  of  the  lawful  holder  to  practice  medicine,  surgery,  and 
obstetrics  within  this  state."  At  a  meeting  of  the  defendant  board,  May  30,  1888, 
"it  was  moved  that  the  Iowa  Eclectic  Medical  College,  located  at  Des  Moines,  be 
recognized  as  in  good  standing."  This  motion  was  adopted  by  a  vote  of  five 
ayes  to  two  nays,  and  thereupon  and  thereafter  certificates  were  issued  to  grad- 
uates of  said  college.  On  March  22,  1890,  C.  P.  Evans,  a  graduate  of  said  col- 
lege in  the  class  of  1889-90,  exhibited  his  diploma  to  the  secretary  of  the  defendant 
board,  which  was  then  verified  as  to  its  genuineness,  and  returned  to  the  appli- 
cant with  a  blank  for  making  application  for  a  certificate  when  he  desired  to  do 
so.  His  application  was  not  received  until  May  21,  1890,  and  no  other  appli- 
cation from  plaintiff's  graduates  was  before  the  defendant  board  during  that 
time.  The  defendant  board,  at  its  organization,  adopted  a  schedule  of  minimum 
requirements  as  to  qualifications  of  students  on  entering  college,  branches  to  be 
taught,  how  to  be  taught,  length  of  course  and  attendance,  facilities  for  teaching, 
and  that  "the  aggregate  graduates  of  a  college  shall  not  exceed  45  per  cent,  of 
its  aggregate  matriculates  during  the  period  of  five  years  ending  with  any  ses- 
sion subsequent  to  sessions  of  1885-86."  At  the  regular  meeting  of  the  board, 
May  7,  1890,  and  when  the  board  was  about  to  adjourn  until  the  regular  meeting 
in  November,  written  charges  were  received  from  Thomas  A.  Brazill  against  the 
plaintiff  college,  charging  that  it  was  conducted  and  operated  in  violation  of  the 
laws  of  the  state,  and  specifying  certain  particulars.  The  specifications  show  a 
disregard  of  the  requirements  in  every  respect,  except  as  to  the  per  cent,  of 
graduates.  On  receipt  of  these  charges  it  was  moved  and  carried  that  they  be 
placed  on  file,  and  a  copy  be  furnished  to  plaintiff,  with  notice  to  appear  at  the 
next  meeting  of  the  board  and  answer  the  charges.  Dr.  Clark  offered  the  follow- 
ing resolution,  which  was  carried:  "Resolved,  that  this  board  will  not  issue 
certificates  to  graduates  of  the  Iowa  Eclectic  Medical  College  at  Des  Moines,  for 
the  session  of  1889-90,  until  the  standing  of  said  college  shall  have  been  deter- 
mined." Following  this  action  the  board  adjourned  until  the  November  meeting. 
At  the  regular  November  meeting  of  the  board,  on  the  testimony  of  the  dean  of 
the  faculty  of  the  college,  the  board  found  sufficient  corroborative  evidence  to 
satisfy  it  that  the  teaching  in  said  college  is  not  up  to  its  minimum  require- 
ments, and  it  therefore  voted  to  withhold  certificates  from  the  graduates  of  said 
college.  The  secretary  called  attention  to  the  application  of  Charles  P.  Evans,  a 
graduate  of  the  said  Iowa  Medical  College,  on  file  in  the  office  of  the  secretary 
since  May  12,  1890.  It  was  moved  and  seconded  that  the  application  be 
rejected,  on  the  ground  that  he  fails  to  furnish  satisfactory  evidence  of  having 
graduated  from  a  college  recognized  by  this  board  as  in  good  standing. 

Appellant's  contentions  are  that  said  action  of  the  defendant  board  is  illegal 
because  not  authorized  by  the  statute,  and,  if  authorized,  is  illegal  because  a 
statute  so  authorizing  is  in  violation  of  the  constitution.  There  is  a  diversity  of 
opinion  as  to  the  necessity  for  such  statutes,  but  with  that  the  court  has  nothing 
to  do.  Its  inquiry  is  whether  the  statute  authorized  the  action  had,  and,  if  so, 
whether  that  authority  is  in  contravention  of  the  constitution.  The  purpose  of 
these  statutes  is  the  protection  of  the  public  against  incompetent  persons  prac- 
ticing medicine,  surgery,  or  obstetrics,  by  restraining  the  practice  of  those  suffi- 
ciently learned  in  that  profession.  As  a  means  of  determining  who  are  thus 
learned,  the  board  of  medical  examiners  was  created,  with  authority,  subject  to 
certain  restrictions,  to  determine  who  are  entitled  to  certificates  authorizing  them 
to  practice  medicine.  This  they  determine  upon  examination  of  the  applicant,  or 
upon  his  diploma,  "issued  by  a  medical  school  legally  organized  and  in  good 
standing."  A  genuine  diploma  from  such  a  school  is  made  sufficient  evidence  of 
learning  to  entitle  the  holder  to  a  certificate.  It  must  be  ascertained,  however, 
that  the  diploma  is  genuine,  that  it  is  to  the  person  presenting  it,  and  that  it  was 


309 

issued  by  a  medical  school  legally  organized  and  in  good  standing.  The  statute 
expressly  authorizes  the  state  board  of  examiners  to  determine  these  inatterB. 
That  board  may  determine;  not  only  the  identity  of  the  applicant,  the  genuineness 
of  the  diploma,  hut  also  whether  it  was  issued  by  a  medical  school  legally 
organized  and  in  good  standing.  To  the  end  that  such  determinations  may  be 
intelligibly  and  properly  made,  section  2547  authorizes  any  member  of  th'r  board 
"to  administer  oaths  and  take  testimony  in  all  matters  relating  to  their  duties 
as  examiners  aforesaid."  The  statute  contains  no  other  provision  as  to  how 
these  matters  shall  be  inquired  into  and  determined;  but  as  said  in  Wood  v. 
Farmer,  69  Iowa,  537,  29  N.  W.  Rep.  440,  "it  is  a  familiar  rule  of  law  that 
authority  to  do  an  act  implies  authority  to  do  all  other  acts  necessary  to  be  done 
in  executing  the  power  conferred.  The  law  will  always  presume  the  existence  of 
authority  to  do  acts  incidental  and  necessary  to  the  discharge  of  lawful  power." 
It  is  clear  that  the  defendant  board  did  have  power,  by  proper  investigation,  to 
determine  the  identity  of  applicants,  the  genuineness  of  their  diplomas,  and 
whether  they  were  issued  by  a  medical  school  legally  organized  and  in  good 
standing. 

The  first  action  complained  of  is  that  of  May  7,  1890,  upon  the  charges  being 
filed  resolving  that  the  board  would  not  issue  certificates  to  graduates  of  the 
plaintiff  college  of  the  class  of  1889-90  until  the  standing  of  the  college  had  been 
determined.  This  action  was  unauthorized,  unjust,  and  arbitrary.  It  was  taken 
without  investigation,  and  without  other  cause  or  information  than  the  filing  of 
charges  by  a  stranger,  who  did  not  even  present  them  in  person,  but  by  a  mes- 
senger. It  was  taken  when  no  application  for  a  certificate  was  pending,  Evans 
not  having  presented  his  until  May  21st.  It  was  in  the  face  of  their  former 
action  determining  the  plaintiff  college  in  good  standing,  upon  the  faith  of  which 
the  course  of  instructions  were  continued,  and  students  encouraged  to  attend.  It 
deprived  the  graduates  of  the  class  of  1889-90  of  receiving  certificates,  without 
investigation,  and,  by  adjourning  until  November,  left  the  college  and  its  grad- 
uates without  even  the  hope  of  investigation  or  relief  until  that  time.  The 
future  of  the  college  depended  upon  whether  the  defendant  board  would  continue 
to  recognize  it  as  in  good  standing,  for  without  such  recognition  it  must  close  its 
doors.  It  was  known  that  its  next  term  commenced  in  October,  and  that  this 
action  must  tend  to  lessen  its  patronage;  yet  the  adjournment  was  until  Novem- 
ber, without  providing  for  an  earlier  meeting,  as  the  statute  authorizes,  and  as 
a  due  regard  for  the  rights  of  the  plaintiff  college  and  its  graduates  would  have 
suggested.  There  is  surely  much  in  this  action  of  the  defendant  board  to  war- 
rant the  criticism  that  is  made  upon  it  by  plaintiff's  counsel.  It  was  illegal 
because  it  reversed  the  former  action  of  the  board  without  any  investigation  and 
without  sufficient  cause.  The  constitutionality  of  the  statute  might  well  be  ques- 
tioned if  it  authorized  the  board  to  determine,  without  investigation,  that  a  par- 
ticular medical  school  was  not  in  good  standing,  and  especially  so  when  that 
school  had  been  previously  determined  to  be  in  good  standing.  We  do  not  say 
that  the  board  is  precluded,  by  having  once  determined  that  a  school  is  in  good 
standing,  from  thereafter  determining  differently,  but  only  that  it  has  not  power 
to  do  so  arbitrarily  and  without  investigation.  We  do  not  say  that  such  inquiries 
must  be  attended  with  the  formality  of  a  trial  in  court,  but  the  deterinination 
must  be  based  upon  inquiry  and  facts,  and  not  upon  the  mere  arbitrary  will  of 
the  board. 

The  remaining  complaint  is  against  the  action  taken  upon  the  investigation 
had  Nov.  21,  1890.  The  complaint  is  not  against  the  manner  of  the  investigation, 
but  against  the  result  as  shown  in  the  resolutions  copied  above.  The  finding 
was  "that  the  teaching  in  said  college  is  not  up  to  our  minimum  requirements." 
The  board  having  authority  to  determine  the  standing  of  colleges,  it  was 
certainly  proper  that  they  should  advise  them  in  advance  what  would  be  required 
of  them.  The  requirements  prescribed,  save  the  one  quoted  above,  look  to  the 
thoroughness  of  the  education  to  be  given,  and  are  in  harmony  with  the  purpose 
of  the  statute.  The  standing  of  a  college,  as  contemplated  in  this  statute,  is 
rather  what  the  college  is,  in  respect  to  the  thoroughness  of  its  course,  than  what 
ft  may  be  reputed  to  be.  The  board  was  fully  authorized  to  determine,  upon 
proper  investigation,  that  a  college  was  not  in  good  standing  that  did  not  meet 
the  minimum  requirements   as  to  extent  and  thoroughness  of  its  course.     The 


310 

legality  of  the  requirements  as  to  the  per  cent,  that  may  graduate  is  not  involved 
in  this  case,  but,  as  it  has  been  discussed,  the  court  may  say  that  it  is  certainly 
questionable.  While  the  graduation  of  an  unusual  per  cent,  may  be  ground  for 
closer  scrutiny,  it  may  well  be  questioned  whether  the  defendant  board  may  arbi- 
trarily say  that  but  45  per  cent,  shall  be  permitted  to  graduate.  The  standing 
of  the  plaintiff  college  was  a  matter  within  the  jurisdiction  of  the  defendant 
board  to  determine,  and  on  Nov.  21,  1890,  after  a  full  and  fair  examination,  it 
determined  that  said  college  was  not  in  good  standing  because  its  teaching  was 
not  up  to  said  minimum  requirements.  The  board  having  jurisdiction  to  deter- 
mine this  question  of  fact,  and  having  determined  it,  upon  full  investigation  and 
evidence  by  unanimous  vote,  the  court  must  hold  their  action  legal,  even  though 
it  might  reach  a  different  conclusion  on  the  facts,  if  it  were  our  province  to  con- 
sider them.  Much  is  said  in  argument  about  the  composition  of  the  defendant 
board  as  to  the  different  schools  of  medicine,  but,  as  the  statute  does  not  require 
that  the  different  schools  shall  be  represented  on  the  board,  its  composition  can- 
not affect  its  jurisdiction  or  the  legality  of  its  acts  in  the  respect  under  con- 
sideration. 

Appellant's  remaining  contention  is  that,  if  the  statute  conferred  power  upon 
the  defendant  board  to  do  the  acts  complained  of,  it  is  in  violation  of  section  6, 
article  1,  and  section  1,  article  8,  of  the  constitution.  Said  section  6  is  as  fol- 
lows: "All  laws  of  the  general  nature  shall  have  a  uniform  operation;  the 
general  assembly  shall  not  grant  to  any  citizen  or  class  of  citizens  privileges  or 
immunities  which,  upon  the  same  terms,  shall  not  equally  belong  to  all  citizens." 
Section  1  of  article  8  is  as  follows:  "No  corporation  shall  be  created  by  special 
laws;  but  the  general  assembly  shall  provide  by  general  laws  for  the  organization 
of  all  corporations  hereafter  to  be  created,  except  as  hereinafter  provided."  The 
exceptions  provided  have  no  application  to  this  case.  In  McAunich  v.  Railroad 
Co.,  20  Iowa,  343,  the  rule  was  announced  as  follows:  "These  laws  are  general 
and  uniform,  not  because  they  operate  upon  every  person  in  the  state,  for  they 
do  not,  but  because  every  person  who  is  brought  within  the  relation  and  circum- 
stances provided  for  is  affected  by  the  law.  They  are  general  and  uniform  in 
their  operation  upon  all  persons  in  the  like  situation,  and  the  fact  of  their  being 
general  and  uniform  is  not  affected  by  the  number  of  persons  within  the  scope  of 
their  operation."  This  rule  has  since  been  followed  in  many  cases,  notably  in 
Land  Co.  v.  Soper,  39  Iowa,  112;  Deppe  v.  Railroad  Co.,  36  Iowa,  52.  The  statute 
under  consideration  is  clearly  within  this  rule  "because  every  person  who  is 
brought  within  the  relations  and  circumstances  provided  for  is  affected  by  the 
law."  It  is  uniform  in  its  operation  "upon  all  persons  in  the  like  situation," 
and  grants  no  privileges  or  immunities  that  do  not  equally  belong  to  all  citizens. 
Article  8  of  the  constitution,  it  will  be  observed,  relates  to  the  creation  of  cor- 
porations, and  does  not  apply  to  the  defendant  board.  It  is  not  a  corporate  body, 
but  a  branch  of  the  government.  The  authority  to  refuse  certificates  to  grad- 
uates of  medical  schools  not  in  good  standing  does  not  extend  special  privileges 
or  immunities  to  other  schools  that  are  determined  to  be  in  good  standing.  It  is 
argued,  on  behalf  of  the  plaintiff,  that  with  the  authority  claimed  by  the  defend- 
ant board  it  may  determine  "absolutely  and  unconditionally,  without  limitation 
or  restraint,  and  without  appeal,  what  rights  the  graduates  of  the  different  col- 
leges of  the  state  shall  enjoy."  It  is  said:  "The  power  to  determine  what 
colleges  are  in  good  standing,  and  what  are  not,  is  simply  an  arbitrary  power, 
that  may  be  exercised  at  the  will  of  the  board,  without  restraint  and  without 
remedy  by  appeal."  It  is  true  no  appeal  is  provided  for,  but  the  students  of  a 
school  that  has  not  been  determined  to  be  in  good  standing,  in  common  with  all 
other  persons,  have  the  right  to  go  before  the  defendant  board  and  be  examined, 
without  regard  to  diploma,  and,  if  found  to  have  the  requisite  qualifications,  to 
receive  a  certificate.  It  is  not  correct  to  say  that  the  defendant  board  may  deter- 
mine whether  a  medical  school  is  in  good  standing,  arbitrarily  and  without 
restraint.  The  law  does  not  authorize  such  action,  and  it  is  illegal.  The  defend- 
ant board  acts  under  the  restraints  of  law  that  require  proper  inquiry  into  the 
matters  to  be  determined,  and  we  may  not  presume  that  the  defendant  board  will 
act  arbitrarily  and  without  investigation,  and  upon  that  presumption  hold  the 
statute  that  confers  the  power  to  be  unconstitutional.  This  statute  is  not  unlike 
many  others  found  in  the  Code  of  Iowa,  conferring  authority  upon  officers  and 


311 

boards  to  determine  similar  questions  as  to  qualifications,  notable  among  which 
is  our  statute  for  the  examination  of  teachers,  applicants  for  admission  to  the 
bar,  and  to  practice  pharmacy  and  dentistry.  Our  conclusion  is  that  the  defend- 
ant board  exceeded  its  jurisdiction,  and  acted  illegally,  in  the  action  taken  May 
7,  1890,  and  that  a  certificate  should  have  been  issued  to  C.  P.  Evans  upon  his 
diploma  from  the  plaintiff  college,  and  his  application  made  thereon  May  21, 
1890.  We  are  of  the  opinion  that  the  action  of  the  defendant  board,  Nov.  21, 
1890,  was  within  its  jurisdiction,  and  legal.  As  the  purpose  of  the  petition  is  to 
test  the  legality  of  this  last  action,  the  judgment  of  the  district  court  dismissing 
the  petition  was  correct,  and  is  therefore  affirmed. 


ITINERANT  VENDOR   SUBJECT   TO  MEDICAL  PRACTICE   ACT 

State  v.  Burlc,  88  la.  661;  56  N.  W.  180 

1893 

This  is  an  appeal  from  a  judgment,  on  an  indictment  charging  that  the 
defendant  sold  liniments,  nostrums,  ointments  and  other  drugs  without  being 
licensed  as  an  itinerant  vendor.  At  the  trial,  it  was  shown  that  the  defendant 
was  in  the  employ  of  a  manufacturer  of  proprietary  medicines;  that  he  traveled 
with  a  team  and  wagon,  selling  medicines  from  house  to  house.  He  did  not  hold 
himself  out  as  a  physician  nor  assume  to  diagnose  ailments.  He  distributed 
printed  circulars  issued  by  the  manufacturing  company,  representing  that  their 
medicines  were  cures  for  certain  diseases  named  in  the  circulars.  The  acts  of  the 
eighteenth  general  assembly  exempted  the  sale  of  proprietary  medicines  from 
the  operation  of  the  medical  practice  act.  This  section  was  amended  by  the 
nineteenth  general  assembly  by  limiting  it  to  preparations  manufactured  in  the 
state  and  sold  and  distributed  by  agents  from  an  established  place  of  business. 
The  twenty-first  general  assembly  repealed  this  section  and  enacted  a  substi- 
tute, regulating  dispensing  by  physicians.  The  defendant  claims  that  the 
original  section  12  was  not  repealed  but  only  the  amendment  passed  by  the 
nineteenth  general  assembly  and  that,  therefore,  the  medical  practice  act  does 
not  apply  to  the  sale  of  proprietary  medicines.  The  court  holds  that  this  con- 
tention was  not  valid  and  that  the  defendant  was  amenable  to  pay  the  license 
provided.  In  the  trial,  after  the  arguments  were  closed,  the  trial  judge  sug- 
gested to  the  county  attorney  that  he  had  failed  to  prove  that  the  defendant  had 
no  license.  The  county  attorney  claimed  that  it  was  for  the  defendant  to  show 
that  he  had  a  license  and  that  he  had  proven  by  one  witness  that  the  defendant 
had  admitted  that  he  had  no  license.  On  this  testimony  being  read  and  on  it 
appearing  that  the  witness  had  not  so  testified,  the  trial  judge  permitted  the 
county  attorney  to  recall  the  witness  and  to  prove  this  admission  by  the  defend- 
ant. The  supreme  court  holds  that  this  was  within  the  discretion  of  the  court 
and  was  no  abuse.  The  state  was  also  permitted,  over  objection,  to  examine 
three  witnesses  who  were  not  before  the  grand  jury  and  whose  names  were  not 
upon  the  indictment.  The  supreme  court  holds  that  if  this  was  error,  it  was 
error  without  prejudice  to  the  defendant,  as  the  statements  of  these  witnesses 
were  not  only  uncontroverted  but  were  admitted  by  the  defendant.  The  court 
holds  that  there  was  no  error  and  reaffirms  the  judgment  of  the  district  court. 


REGULATING  ITINERANT  VENDORS— INDICTMENT 

State  v.  Blair,  92  la.  28;  60  N.  W.  486 

1894 

Indictment  for  publicly  professing  to  treat  diseases  while  an  itinerant  vendor 
of  drugs,  nostrums,  etc.,  without  licenses.  The  district  court  sustained  a 
demurrer  to  the  indictment,  and  the  state  appealed. 

It  is  urged  by  the  defense  that  the  indictment  is  defective,  because  the  facts 
constituting  the  offense  are  not  pleaded.     It  is  said  that  the  indictment  fails  to 


312 

allege  that  any  drugs  were  sold,  or  offered  for  sale,  in  Monroe  county.  The 
offense  does  not  consist  in  the  defendant's  having  sold,  or  offered  for  sale,  drugs 
in  Monroe  county,  but  in  the  fact  of  his  then  being  an  itinerant  vendor  of  drugs, 
etc.,  and  then  publicly  professing,  in  Monroe  county,  by  writing  or  printing  or 
another  method,  to  cure  or  treat  diseases,  etc.,  by  any  drug,  etc.  For  instance, 
any  person,  being  an  itinerant  vendor  of  drugs,  who,  going  into  Monroe  county, 
and  without  a  sale  or  an  offer  to  sell,  makes  the  profession  of  curing  or  treating 
in  the  way  and  by  means  specified,  is  guilty  of  the  offense  contemplated  by 
the  act. 

The  indictment  charges  that  the  defendant  did,  by  "printing,  writing,  and 
other  methods,  profess,"  etc.  It  is  urged  that,  if  more  than  one  printing  or 
writing  was  used,  each  would  be  a  separate  offense,  and  hence  that  the  indict- 
ment is  bad  for  duplicity.  The  court  thinks  not.  It  is  the  professing  to  cure  or 
treat  that  constitutes  the  offense,  and  that  may  be  done  by  one  or  many  writings 
or  printings,  or  both. 

It  is  further  insisted  that  the  act  under  which  the  indictment  was  found  is 
in  violation  of  the  constitutional  provision  that  "every  person  may  speak,  write 
and  publish  his  sentiments  on  all  subjects,  being  responsible  for  the  abuse  of  that 
right.  No  law  shall  be  passed  to  restrain  or  abridge  the  liberty  of  speech  or  of 
the  press."  Const.  Iowa,  art.  1,  §  7.  The  statute  in  question  is  a  part  of  a 
chapter  regulating  "The  Practice  of  Pharmacy,  and  the  Sale  of  Medicines  and 
Poisons,"  and  is  designed  to  guard  against  evil  consequences  liable  to  result 
therefrom.  The  prohibitive  features  of  the  act  do  not  go  to  the  rights  intended 
to  be  secured  by  the  constitutional  provision  as  to  speaking,  writing,  or  publish- 
ing one's  sentiments,  or  as  to  abridging  or  restraining  the  liberty  of  the  press. 

The  indictment  charges  the  offense  in  the  language  of  the  law,  substantially, 
which  is  particularly  specific  as  to  the  facts  constituting  an  offense.  In  such  a 
case  it  is  sufficient  to  charge  the  offense  in  the  language  of  the  statute.  The 
court  thinks  the  indictment  is  sufficient,  and  that  the  court  erred  in  sustaining 
the  demurrer."  While  it  disproves  the  order  of  the  court  in  sustaining  the 
demurrer,  the  appeal  being  by  the  state,  it  does  not  reverse  the  judgment. 


PRACTICE  FOR  FIVE  YEARS  A  VALID  EXCEPTION 

State  v.  Bair,  112  la.  466;  84  N.  W.  532 

1900 

The  defendant  was  accused  of  practicing  as  an  itinerant  physician,  without 
first  having  obtained  a  license  from  the  state  board  of  medical  examiners.  The 
defendant  demurred  thereto  on  the  ground  that  certain  provisions  of  the  Code 
with  respect  to  license  are  obnoxious  to  section  6  of  article  1  of  the  constitution 
of  Iowa  and  the  fourteenth  amendment  to  the  constitution  of  the  United  States. 

The  court  says  that  every  citizen  has  the  undoubted  right  to  follow  any  lawful 
calling,  business,  or  profession  he  may  select,  subject  only  to  such  restrictions  as 
the  government  may  impose  for  the  welfare  and  safety  of  society.  This  right  is 
one  of  the  distinguishing  features  of  republican  institutions.  Many  of  the  occu- 
pations of  life  may  be  followed  by  persons,  irrespective  of  fitness,  without  danger 
to  the  public  health  or  in  detriment  to  the  general  welfare.  Others  demand 
special  knowledge,  training,  or  experience;  and  the  power  of  the  state  to  pre- 
scribe such  restrictions  and  regulations  for  these  as  in  its  judgment  shall  protect 
the  people  from  the  consequences  of  ignorance  or  incapacity,  as  well  as  of  decep- 
tion and  fraud,  has  never  been  questioned.  This  is  especially  true  with  respect 
to  the  practice  of  medicine.  Nearly  every  one,  of  necessity,  consults  the  physi- 
cian at  some  period  of  life,  but  few  are  able  to  judge  his  qualifications  in  point 
of  learning  and  skill.  And  because  of  the  importance  of  the  interests  committed 
to  his  care,  involving  health  and  life,  this  law  was  enacted,  requiring  knowledge 
and  capacity  commensurate  therewith,  and  upon  which  the  community  may  rely. 
Prior  to  Jan.  1,  1899,  this  was  to  be  evidenced  in  three  different  ways:  (1)  By 
examination  before  the  state  board  of  medical  examiners;  (2)  by  a  genuine 
certificate  of  graduation  from  a  medical  school,  found  by  the  board  to  be  of  good 


313 

standing;  and  (3)  by  a  showing  that  the  physician  had  "been  in  practice  in  this 
state  for  five  consecutive  years,  three  years  of  which  time  shall  have  been  in  one 
locality."  The  nature  and  extent  of  these  qualifications  were  primarily  for  the 
determination  of  the  legislature.  No  objection  can  be  urged  because  of  their 
severity,  if  appropriate  to  the  profession,  and  attainable  by  reasonable  study  or 
application.  No  one  is  deprived  of  the  right  to  practice  medicine.  All  that  is 
exacted  is  that  every  one  who  assumes  to  do  so  shall  be  possessed  of  the  requisite 
knowledge  and  skill,  and  that  this  be  evidenced  by  a  certificate  of  the  board 
designated  by  the  state  to  ascertain  his  fitness.  In  other  words,  the  real  test, 
applicable  to  all  alike,  is  that  of  qualification,  and  this  statute  relates  to  the 
proof  to  be  furnished  in  order  to  establish  this  as  a  basis  for  such  certificate. 
The  satisfactory  character  of  a  diploma  from  a  reputable  medical  school,  and 
the  disclosures  of  an  examination,  as  such  proof,  is  not  questioned;  and  statutes 
which,  in  addition  thereto,  treat  the  practice  of  the  profession  within  the  state 
for  a  number  of  years,  or  the  fact  of  being  in  practice  at  the  time  of  their  enact- 
ment, as  sufficient  evidence  of  qualification,  have  often  been  upheld,  as  invulner- 
able to  the  charge  of  discrimination. 

But  section  2579  not  only  requires  practice  of  medicine  in  the  state  tor  five 
consecutive  years,  as  prima  facie  evidence  of  qualification,  but  stipulates  that 
three  of  these  shall  have  been  in  one  locality;  and  it  is  asserted  that  thereby 
physicians  of  five-years  residence  in  the  state  are  divided  into  two  classes, — those 
who  have  practiced  three  of  the  five  consecutive  years  in  one  place,  and  those  who 
have  not.  This  may  be  conceded,  as,  for  the  purpose  of  efficient  legislation,  it 
is  often  necessary  to  divide  the  subjects  upon  which  it  operates  into  classes. 
Such  division  may  not  be  based  on  differences  which  merely  serve  to  definitely 
separate,  but  must  rest  on  those  of  the  "situation  and  circumstances  of  the  sub- 
jects placed  in  the  different  classes  as  suggest  the  necessity  or  propriety  of  dif- 
ferent legislation  with  respect  to  them."  If  the  distinction  upon  which  the 
classification  is  grounded  is  not  arbitrary,  but  reasonable  and  apparent,  relating 
somewhat  to  the  subject  of  the  enactment,  it  will  justify  the  application  of  dif- 
ferent rules  to  the  subjects  thus  separated,  and  legislation  founded  thereon  is 
not  subject  to  condemnation  as  class  legislation.  Actual  experience  in  the  prac- 
tice of  medicine  tends  to  render  the  physician  capable.  Continuing  in  the  profes- 
sion several  years  in  a  particular  locality  indicates  a  degree  of  merit  not  likely 
to  be  found  in  a  person  moving  from  place  to  place.  The  itinerant  doctor,  roving 
about,  without  remaining  in  one  locality  longer  than  a  few  days  or  weeks,  is 
usually  wanting  in  honesty,  and  too  frequently  but  a  charlatan  or  quack.  A 
professional  residence  affords  opportunity  of  becoming  known,  and,  if  lacking 
in  capacity  or  character,  obstacles  may  be  interposed  to  the  issuance  of  a  cer- 
tificate; since  notwithstanding  continuous  practice  in  one  place,  a  certificate  may 
be  denied,  owing  to  incompetency  or  immorality.  In  practical  operation,  the  law 
admits  those  to  practice  who  have  followed  the  profession  at  one  place  long 
enough  to  acquire  knowledge  through  experience  in  the  profession,  and  to  become 
known,  unless  want  of  capacity  or  good  character  affirmatively  appears.  Others 
must  be  examined  or  present  diplomas.  It  makes  a  distinction  recognized  in  all 
the  affairs  of  life.  Will  any  one  contend  for  a  moment  that,  everything  else 
being  equal,  the  permanent  resident  of  a  locality  is  not  likely  to  be  superior  in 
capacity  and  morals  to  him  who  has  no  fixed  professional  abiding  place?  That 
there  may  be  and  are  exceptions  is  readily  conceded,  but  the  legislature  was  not 
bound  to  adopt  an  absolutely  infallible  rule.  If,  within  the  ordinary  experience 
of  men,  and  as  a  matter  of  common  observation,  physicians  of  learning,  skill, 
and  character  are  generally  permanently  located,  and  seldom  change  the  places 
where  their  profession  is  followed,  as  appears  to  be  true,  there  is  no  tenable 
reason  why  this  circumstance  might  not  be  treated  by  the  legislature  as  evidence 
of  qualification  under  the  statute.  For  the  law  does  not  purport  to  grant  privi- 
leges or  immunities  to  any  physician  or  class  of  physicians.  It  simply  estab- 
lishes a  rule  of  evidence  by  which  qualification  to  practice  medicine  and  surgery 
shall  be  ascertained.  What  should  be  such  evidence,  if  appropriate  for  that  pur- 
pose, and  bearing  somewhat  on  the  matter  of  fitness,  was  peculiarly  within  the 
discretion  of  the  lawmakers.  The  distinction  is  neither  arbitrary  nor  unreason- 
able, but  in  harmony  with  common  knowledge  of  differences  which  ordinarily 
exist  between  persons  following  the  medical  profession  who  have  a  permanent 


314 

locus  in  quo,  and  those  who  do  not.  The  court  is  not  unmindful  of  a  decision  to 
the  contrary,  construing  a  somewhat  similar  statute,  by  the  supreme  court  of 
New  Hampshire.  But  that  court  appears  to  have  grounded  its  conclusion  on  the 
erroneous  assumption  that  permanency  in  the  practice  in  a  locality  furnishes  no 
evidence  of  qualification.  This,  as  We  have  undertaken  to  demonstrate,  is  not 
warranted. 

As  the  statute  is  not  in  contravention  of  the  provision  of  the  constitution  pro- 
hibiting unjust  discrimination,  the  demurrer  to  the  indictment  should  have  been 
overruled.    Reversed.  

CONSTRUCTION  OF  PRACTICE  ACT  AND  WHAT  VIOLATES  IT 

State  v.  Heath,  125  la.  585;  101  N.  W.  429 

1904 

The  supreme  court  says  that  certain  penalties  are  denounced  by  section 
2580  of  the  Code  against  those  who  shall  practice  medicine,  surgery  or  obstetrics 
in  that  state  without  first  having  obtained  and  filed  for  record  the  certificate 
required  by  the  chapter  of  which  that  section  forms  a  part.  Section  2579  defines 
who  shall  be  deemed  to  be  practicing  medicine  as  follows:  "Any  person  shall  be 
held  as  practicing  medicine,  surgery  or  obstetrics,  or  to  be  a  physician,  within 
the  meaning  of  the  chapter,  who  shall  publicly  profess  to  be  a  physician,  surgeon 
or  obstetrician,  and  assume  the  duties,  or  who  shall  make  a  practice  of  pre- 
scribing or  of  prescribing  and  furnishing  medicine  for  the  sick,  or  who  shall 
publicly  profess  to  cure  or  heal."  The  manifest  intention  of  the  legislature  was 
to  divide  those  who  shall  be  deemed  practicing  medicine  into  three  classes:  1, 
all  "who  shall  profess  to  be  a  physician,  surgeon  or  obstetrician  and  assume  the 
duties;"  2,  those  "who  shall  make  a  practice  of  prescribing  or  prescribing  and 
furnishing  medicine  for  the  sick;"  and  3,  those  "who  shall  publicly  profess  to 
cure  or  heal."  It  is  doubtless  true  that  a  mere  public  profession  of  an  ability  to 
heal  would  not  subject  any  one  to  the  penalties  of  the  law.  Such  profession  must 
be  made  under  such  circumstances  as  to  indicate  that  it  is  made  with  a  view  of 
undertaking  to  cure  the  afflicted.  One  publicly  professes,  in  announcing  to  the 
public  generally  his  claim  of  skill  in  the  art  of  healing,  and  is  guilty,  under 
section  2580  of  the  Code,  if,  without  a  certificate,  and  not  within  the  statutory 
exceptions,  this  is  done  with  the  purpose  of  treating  the  maladies  of  patients  who 
may  engage  his  attention.  There  is  some  reason  for  not  exacting  proof  of  actual 
treatment  in  all  cases.  Should  one  profess  to  be  a  physician,  and  assume  the 
duties  or  prescribe  for  the  sick,  little  difficulty  might  be  experienced  in  obtaining 
evidence  of  the  fact.  But  suppose  a  charlatan,  quack  or  other  persons  assumes 
or  pretends  to  believe  he  may  effect  cures  in  an  invisible  manner,  and  undertakes 
to  do  so?  Proof  of  his  effort  would  be  all  but  impossible.  The  statute,  in  order 
to  be  effective,  has  denounced  the  public  profession  that  he  will  cure  or  heal,  and 
this  may  be  proven  without  exacting  evidence  that  he  has  actually  undertaken 
to  do  so.  The  statute,  when  fairly  construed,  does  not  seem  capable  of  a  broader 
construction.  Nor  does  the  court  deem  this  essential  in  order  to  sustain  its 
constitutionality.  The  statutes  do  not  attempt  to  discriminate  between  different 
schools  of  medicine  or  systems  for  the  cure  of  disease.  No  method  of  attempting 
to  heal  the  sick,  however  occult,  is  prohibited.  All  that  the  law  exacts  is  that, 
whatever  the  system,  the  practitioner  shall  be  possessed  of  a  certificate  from  the 
State  Board  of  Medical  Examiners,  and  shall  exercise  such  reasonable  skill  and 
care  as  are  usually  possessed  by  practitioners  in  good  standing  of  that  system 
in  the  vicinity  where  they  practice.  This  excludes  no  one  from  the  profession, 
but  requires  all  to  attain  reasonable  proficiency  in  certain  subjects  essential  to 
the  appreciation  of  physical  conditions  to  be  affected  by  treatment.  The  object 
is  not  to  make  any  particular  mode  of  effecting  a  cure  unlawful,  but  simply  to 
protect  the  community  from  the  evils  of  empiricism.  Often  the  individual  alone 
suffers  from  the  want  of  proper  attention,  but  in  cases  of  contagious  or  infectious 
diseases  the  entire  community  may  be  endangered.  In  no  profession,  occupation 
or  calling  are  the  people  more  easily  or  readily  imposed  on.  Section  2576  of  the 
Code  requires  all,  regardless  of  the  particular  school,  to  be  examined  in  anatomy, 
physiology,  general   chemistry,  pathology,  surgery  and  obstetrics.     Surely   it   is 


315 

not  unreasonable  to  exact  for  every  one  who  proposes  to  undertake  to  prevent, 
cure  or  alleviate  disease  and  pain  some  knowledge  of  the  nature  of  disease,  ita 
origin,  its  anatomical  and  physiologic  features,  its  causative  relations  and  of 
the  preparation  and  action  of  drugs.  At  any  rate,  the  state,  in  order  to  guard 
the  people  against  the  effects  of  imposition  or  ignorance,  had  the  right  to  exact 
such  knowledge.  The  examination  in  materia  medica,  therapeutics  and  the 
principles  and  practice  of  medicine  must  correspond  to  the  school  according  to 
which  the  applicant  proposes  to  practice.  In  this  case  it  conclusively  appeared 
that  the  accused,  who  had  never  obtained  a  certificate  from  the  State  Board  of 
Medical  Examiners,  professed  publicly  to  heal  a  great  variety  of  ailments  (by 
"magnetic  treatments"),  and  so  did  for  the  purpose  of  procuring  patients  and 
treating  them.    The  question  of  his  guilt  should  have  been  submitted  to  the  jury. 


UNLAWFUL  PRACTITIONERS 

State  v.  Edmunds,  121  la.  833;  101  N.  W.  -'i31 

1904 

The  charge  in  this  case  was  that  the  defendant,  being  a  non-resident,  assumed 
the  duties  of,  and  publicly  professed  to  be,  a  physician,  and  did  attempt  and 
profess  to  heal  and  cure  diseases  by  dieting  his  patients  and  causing  them  to 
take  certain  exercises  and  to  wear  glasses  furnished  by  him;  that  he  went  about 
and  in  various  ways  solicited  persons  to  meet  him  for  treatment,  and  did,  while 
so  practicing  as  an  itinerant  physician,  treat  and  attempt  to  cure  injuries, 
diseases,  etc.  Did  the  acts  charged  constitute  an  offense  under  the  laws  of  Iowa? 
Section  2579  of  the  Code  defines  "physician,"  "practice  of  medicine,"  etc.,  as  fol- 
lows: "Any  person  shall  be  held  as  practicing  medicine,  surgery  or  obstetrics 
or  to  be  a  physician  within  the  meaning  of  this  chapter  who  shall  publicly  pro- 
fess to  be  a  physician,  surgeon  or  obstetrician,  and  assume  the  duties,  or  who 
shall  make  a  practice  of  prescribing  or  prescribing  and  furnishing  medicine  for 
the  sick,  or  who  shall  publicly  profess  to  cure  or  heal."  Section  2580  provides 
a  penalty  to  be  imposed  on  "any  person  who  shall  practice  medicine,  surgery  or 
obstetrics  in  the  state  without  first  having  obtained  and  filed  for  record  the 
certificate  therein  required."  Section  2581  defines  an  "itinerant  physician"  as 
follows:  "Every  physician  practicing  medicine,  surgery  or  obstetrics,  or  pro- 
fessing or  attempting  to  treat,  cure  or  heal  diseases,  ailments  or  injuries,  by  any 
medicine,  appliance  or  method,  who  goes  from  place  to  place,  shall  be  considered 
an  itinerant  physician."  This  section  also  provides  for  a  license  fee  of  $250  per 
annum,  the  same  being  payable  into  the  state  treasury  for  the  use  of  the  state 
of  Iowa.  Such  license  may  issue  only  to  such  as  hold  a  certificate  from  the 
State  Board  of  Medical  Examiners.  It  was  contended  that  as  the  defendant  did 
not  profess  or  attempt  to  cure  by  any  medicine,  appliance,  or  method  similar  to 
medicine,  but  by  dieting  his  patients,  etc.,  his  acts  did  not  come  within  the  pro- 
hibitions of  section  2581.  The  supreme  court  says  that  the  question  here  was  a 
narrow  one,  depending  wholly  on  the  construction  to  be  given  the  words 
"medicine,  appliance,  or  method."  Do  they  mean  a  medicine  or  drug,  or  some- 
thing administered  as  a  medicine  or  drug  would  be  ?  The  court  thinks  this  too 
narroAv  a  construction.  It  says  that  an  appliance  can  hardly  be  said  to  be  a 
medicine  or  drug,  and  a  method  may  or  may  not  involve  the  administration  of 
any  substance,  either  internally  or  externally.  True,  when  general  terms  follow 
specific  words  of  a  like  nature,  the  general  terms  are  presumed  to  embrace  thingp 
and  methods  of  the  kind  designated  by  the  specific  words.  But  for  this  rule  to 
apply,  it  must  appear  that  the  general  words  are  of  a  like  nature.  This  was  not 
true  here.  Undoubtedly  the  state  has  the  right  to  determine  what  acts  shall 
constitute  the  practice  of  the  healing  art,  and  it  may  impose  conditions  on  the 
exercise  of  that  privilege.  Having  defined  the  terms  it  uses,  courts  should  accept 
the  definition  given,  and  not  be  too  subtle  in  the  use  of  refined  distinctions.  To 
save  its  people  from  quacks  and  charlatans,  the  state  has  plenary  power  to  pro- 
hibit or  supervise  the  exercise  of  the  healing  art.  Statutes  similar  to  the  one  in 
question  have  been  enacted  in  many  states,  and  they  have  been  held  to  apply  to 
magnetic  healers.  Cases  from  other  states  cited  and  relied  on  by  the  defendant's 
counsel  were  not  in   point,  fcr  the  reason  that  the   statutes  therein  construed 


316 

were  not  so  broad  as  the  one  here  before  the  court.  The  Iowa  legislature 
evidently  intended  to  prohibit  the  practice  of  the  healing  art  by  the  use  of 
medicine  or  any  kind  of  appliance  or  methods,  except  on  certain  named  con- 
ditions. The  language  used  is  very  broad  and  comprehensive,  and  covers  any 
and  even*  kind  of  public  profession  to  cure  and  heal  by  the  use  of  any  method  or 
device.  It  confines  the  practice  of  medicine  to  the  school  or  schools  regarded  as 
lawful,  and  does  not  permit  quacks  and  charlatans  to  impose  on  the  public.  The 
charge  against  the  defendant  was  that  he  was  practicing  as  an  itinerant  physi- 
cian without  the  required  license,  and  it  was  unimportant,  the  court  says,  to 
inquire  as  to  whether  or  not  he  had  a  state  certificate,  as  this  would  afford  him 
no  protection.  There  may  be  some  doubt  as  to  whether  a  non-resident  may  obtain 
this  certificate,  maintain  his  residence  in  another  state,  and  practice  his  profes- 
sion in  Iowa  without  obtaining  the  additional  license  required  by  section  2581 
of  the  Code.  But  as  to  this  the  court  expresses  no  decided  opinion  at  this  time. 
As  to  the  contention  that  the  license  tax  is  unreasonably  high,  oppressive,  and 
prohibitive,  the  court  says  that,  being  in  the  nature  of  an  occupation  tax,  the 
state  undoubtedly  had  the  right  to  fix  it  at  such  sum  as  it  saw  fit.  While  the 
practice  of  medicine  is  often  spoken  of  as  a  right,  it  is  not,  strictly  speaking,  a 
right,  but  a  mere  privilege,  upon  the  exercise  of  which  the  state  may  impose 
conditions  such  as  it  deems  advisable.  The  title  of  the  act  is,  "Of  the  practice  of 
medicine,"  and,  the  court  says,  the  subject-matter  is  sufficiently  expressed.  It 
was  error  to  sustain  a  demurrer  to  the  indictment. 


OBJECT  OF  MEDICAL  PRACTICE 

State  v.  Wilhite,  132  la.  226;  109  N.  W.  730 

1906 

The  supreme  court  holds  sufficient,  and  affirms  a  judgment  of  conviction  on, 
an  indictment  which,  though  inartistically  drawn,  charged,  in  substance,  that 
the  defendant  did  wilfully  and  unlawfully  practice  medicine  and  publicly  profess 
to  cure  and  heal  the  diseases  and  ailments  to  which  the  flesh  is  heir  by  means  of 
a  certain  system,  a  more  particular  description  of  the  peculiar  and  mysterious 
workings  of  which  was  to  the  grand  jury  unknown;  that  he  advertised  in  a 
certain  newspaper  that  by  said  system  he  could  cure  and  heal  tuberculosis  and 
cause  the  same  to  be  cured,  as  also  that  he  was  a  "doctor  of  neurology  and 
ophthalmology,"  with  an  office  at  a  certain  place  and  certain  office  hours;  that 
he  maintained  such  office  and  had  placed  near  the  entrance  thereto  an  advertise- 
ment sign  containing  the  words,  "Dr.  Wilhite,  Neurologist,"  by  means  of  which 
advertisement  he  solicited  persons  to  meet  him  at  his  office  to  participate  in  the 
beneficent  results  arising  from  treatment  under  his  said  system;  that  he  did 
then  and  there  undertake  to  cure  and  heal  diseases  and  ailments,  but  did  not 
have  a  certificate  or  license  from  the  proper  authorities  so  to  practice,  nor  did  he 
file  with  the  county  recorder  such  certificate  to  practice,  and  had  never  applied 
therefor. 

The  evidence,  the  court  says,  established  the  defendant's  guilt.  True,  he 
modestly  ascribed  to  Nature  the  healing  of  all  diseases,  and  merely  claimed  to 
discover  and  remove  the  causes  so  as  to  give  Nature  a  chance.  To  accomplish 
this  he  proposed  to  "stop  the  leaks  in  the  nervous  system  and  repair  the  damages 
done  by  methodical  rest  and  dietetics."  In  a  long  screed  criticizing  the  treatment 
of  disease  by  physicians  generally,  published  in  a  local  paper,  he  announced  him- 
Eelf  "the  master  mechanic  of  the  human  body,"  adding :  "The  system  I  practice  is 
taught  in  but  one  school  in  the  world,  and  I  am  a  graduate  of  that  school;"  and 
proceeded:  "If  your  organs  are  not  all  working  properly  call  on  a  master  who  will 
remove  the  cause.  If  there  is  a  leak  of  power  he  stops  it.  If  there  is  a  pressure  on 
some  of  the  shaftings  (or  nerves),  causing  a  hot  box  (or  pain),  he  removes  it.  If 
the  right  fuel  has  not  been  used,  he  orders  the  right  kind,  and  if  the  fireman  does 
not  know  how  to  fire,  he  teaches  him  or  her  the  business."  And,  after  quoting  a  let- 
ter said  to  have  been  received  from  a  patient,  he  said:  "I  do  not  claim  to  be  a 
specialist  on  tuberculosis  any  more  than  a  great  many  (in  fact,  almost  all)  so- 
called  diseases  that  the  medical  men  and  other  specialists  have  not  been  able  to 


,       317 

do  much  for  in  the  way  of  curing.  This  system  gives  a  permanent  cure.  We 
prefer  those  who  have  tried  other  systems.  In  that  way  ire  prove  the  system  I 
practice  is  the  bes<  because  we  get  good  results.  We  do  not  care  much  what  your 
trouhles  are  if  you  want  to  get  well  and  stay  well.  Dr.  J.  C.  Wilhit- . 
Central  Avenue,  Fort  Dodge,  Iowa."  This  was  a  public  profession  to  cure  and 
heal.  Publishing  his  card  as  "doctor  of  neurology  and  ophthalmology"  was  also  a 
public  profession  that  he  was  a  physician,  and  this  with  the  assumption  of  duties 
as  such,  by  advising  patients  how  to  care  for  themselves  so  that  Nature  might 
effect  a  cure,  constituted  practicing  medicine  within  the  meaning  of  the  statute. 

Continuing,  the  court  says  that  the  defendant  complained  that  if  he  be 
adjudged  guilty  there  were  others  equally  so,  and  many  were  enumerated  who.  as 
counsel  seemed  to  think,  must  come  beneath  the  ban  of  the  law.  But  it  will  be 
time  enough  to  determine  each  case  when  it  reaches  the  court,  and  should  some 
escape  it  may  afford  the  accused  some  consolation  to  reflect  that  also  at  the  fall 
of  the  tower  of  Siloam  those  who  escaped  were  quite  as  great  sinners  as  the  18 
who  were  crushed  beneath  its  walls.  At  any  rate,  the  zeal  of  the  prosecutor 
was  not  misdirected  in  this  case.  The  "doctor"  left  the  farm  in  1902,  and  after 
studying  at  the  "Northern  College  of  Ophthalmology  and  Otology"  two  months, 
was  awarded  the  degree  of  "doctor  of  optics."  He  then  pursued  a  correspondence 
course  in  the  same  school  during  the  summers  of  1902  and  1903  and  became 
entitled  to  a  diploma  on  the  payment  of  $10.  Thereafter  he  took  a  'regular 
course"  of  three  months  at  the  "McCormick  Neurological  College"  and  became  a 
"doctor  of  neurology"  March  1,  1905.  Aside  from  this  he  has  read  several  articles 
in  the  magazines  and  a  couple  of  works  on  the  eye.  No  argument  is  required  to 
demonstrate  that  his  preparation  was  utterly  inadequate,  and  that  his  pretensions 
savored  of  the  charlatan  and  imposter.  Even  though  familiar  with  his,  alleged 
"system,"  he  could  not  have  been  reasonably  proficient  in  those  subjects  essential 
to  the  appreciation  of  physical  conditions  to  be  affected  by  treatment. 

The  design  of  the  law  is  not  to  render  any  mode  of  treatment  whatsoever 
unlawful  but  that  every  one  before  he  shall  undertake  to  prevent,  cure  or  alleviate 
diseases  and  pain  as  an  occupation  shall  have  some  knowledge  of  the  nature  of 
disease,  its  origin,  its  anatomic  and  physiologic  features,  its  causative  relations 
and  of  the  preparation  and  action  of  drugs.  Experience  has.  shown  that  this  is 
necessary  for  the  protection  of  the  people  against  fraud  and  empiricism.  No  one 
is  thereby  deprived  of  the  opportunity  to  exploit  his  "system."  All  that  is 
exacted  is  that  before  undertaking  to  do  so  by  applying  it  to  the  functions  of  life 
he  shall  be  possessed  of  that  degree  of  knowledge  and  skill  required  by  the  statute 
of  all  and  evidenced  by  a  certificate  from  the  proper  officers  of  the  state. 

The  considerations  urged  in  this  case  against  the  constitutionality  of  the 
statutes  were  pressed  on  the  court's  attention  when  State  v.  Heath,  125  Iowa  585, 
was  decided.  The  court  is  not  inclined  to  reconsider  the  conclusions  reached  in 
these  decisions. 

A  physician  having  testified  that  Dunglison's  Medical  Dictionary,  revised 
edition,  is  accepted  by  the  medical  profession  as  authority  in  the  definition  of 
words,  and  thereupon  the  definitions  of  '•'anatomy,"  "neurology,"  "opthalinology," 
"pathology"  and  "physiology"  contained  therein  having  been  introduced  in 
evidence,  over  objection,  the  court  holds  that,  even  though  the  court  might  have 
taken  judicial  notice  of  the  meaning  of  these  words,  it  was  not  error  to  receive  a 
standard  medical  dictionary  in  evidence  as  an  aid  to  the  memory  and  under- 
standing of  the  court.  Bixby  v.  Railway  Co.,  105  Iowa  293,  and  like  cases  are 
not  in  point.  They  hold  that  medical  works,  treating  of  the  symptoms  and  cure 
of  disease,  are  not  admissible;  not  that  standard  authorities  may  not  be  received 
as  proof  of  the  meaning  of  medical  terms. 


GOOD  CASE  MADE  AGAINST  ILLEGAL  PRACTITIONER 

State  v.  Kendig,  133  la.  164;  HO  N.  W.  463      " 

1907 

The   supreme   court   affirms   a   conviction   of    practicing    medicine  without   a 

license.     The  indictment,  found  under  Sections  2579  and  2580  of  the  Iowa  Code, 

charged  that  "the  said  A.  J.  Kendig,  on  the  first  day  of  September,  A.  D.  1903, 


318 

and  from  the  said  first  day  of  September,  A.  D.  1903,  until  the  time  of  the  finding 
of  this  indictment,  did,  in  the  county  of  Madison  and  state  of  Iowa,  falsely,  wrong- 
fully and  unlawfully  assume  the  duties  of  a  physician  and  make  a  practice  of 
prescribing  and  furnishing  medicine  for  the  sick,  and  did  wrongfully,  falsely  and 
unlawfully  publicly  profess  to  cure  and  heal,  without  having  first  obtained  from 
the  board  of  medical  examiners  of  the  state  of  Iowa,  and  filed  for  record,  a  certifi- 
cate conferring  on  him  the  right  to  practice,  contrary  to  the  statutes  in  such  cases 
made  and  provided." 

The  indictment  was  challenged  on  several  grounds,  and,  first,  that  it  was  not 
sufficiently  certain  as  to  the  person  charged,  or  as  to  the  offense  intended  to  be 
charged,  in  that  the  act  or  omission  charged  was  not  set  forth  with  sufficient 
particularity.  It  was  said  that  the  indictment  did  not  give  the  slightest  informa- 
tion  as  to  the  time,  place  or  circumstances  of  the  offense,  nor  of  the  evidence  the 
defendant  would  be  required  to  produce  to  establish  his  defense.  But  the  court 
holds  that  here  the  statutory  definition  of  the  crime  was  complete,  and.  as  the 
indictment  charged  the  defendant's  offense  in  the  language  of  the  statute,  it  was 
sufficient. 

Again,  it  was  said  that  the  indictment  did  not  charge  the  defendant  with 
prescribing  medicine  for,  or  practicing  on,  human  beings,  as  distinguished  from 
furnishing  medicine  for  domestic  animals.  This  objection,  the  court  says,  was 
purely  hypercritical  and  without  merit.  According  to  the  common  understanding, 
as  well  as  in  law,  there  is  a  distinction  between  the  practice  of  medicine  and  the 
healing  of  the  sick  and  the  treatment  of  diseased  animals. 

Nor  does  the  court  think  that  the  indictment  was  insufficient  in  that  it  did 
not  negative  the  exceptions  contained  in  the  statute,  as  that  it  shall  not  be  con- 
strued to  prohibit  students  from  prescribing  under  certain  conditions  or  gratuitous 
services  in  the  case  of  emergency,  etc.  The  court  says  that  the  general  rule  as  to 
exceptions,  provisos,  and  the  like  is  that  where  the  exception  or  proviso  forms  a 
portion  of  the  description  of  the  offense  so  that  the  ingredients  thereof  can  not  be 
accurately  and  definitely  stated  if  the  exception  is  omitted,  then  it  is  necessary  to 
negative  the  exception  or  proviso,  but,  where  the  exception  is  separable  from  the 
description  and  is  not  an  ingredient  thereof  it  need  not  be  noticed  in  the  accusa- 
tion; for  it  is  a  matter  of  defense. 

That  there  was  ample  testimony  to  justify  the  verdict  returned,  the  court 
explains  by  saying  that  there  was  no  doubt  that  the  defendant  was  visiting  the 
sick,  diagnosing  their  ailments  and  furnishing  medicines  for  their  cure.  Not  only 
this,  but  he  filed  claims  against  the  estates  of  some  of  his  patients  for  medical  ser- 
vices rendered  and  asked  the  county  to  recompense  him  for  treating  a  '-county 
charge."  The  statute,  the  court  further  says,  was  intended  to  cover  the  advertis- 
ing and  selling  of  all  medicines  except  those  known  as  "patent"  or  "proprietary," 
and  there  was  no  testimony  that  the  medicines  which  the  defendant  was  vending 
belonged  to  either  of  these  classes.  Moreover,  the  defendant  was  not  merely 
selling  certain  preparations,  but  he  was  visiting  the  sick  and  prescribing  them 
for  his  patients. 

TRAVELING  PHYSICIANS  MUST  PAY  LICENSE  TAX 
City  of  Fairfield  v.  Shallenberger,  135  la.  615;  113  N.  W.  459 

1907 

The  supreme  court  upholds  a  city  ordinance  requiring  traveling  physicians 
engaging  for  pay  or  reward  in  that  occupation  or  profession  in  the  city  to  pay  a 
license  of  $50  per  year.  Section  700  of  the  Iowa  Code  provides  that  cities  and 
towns  shall  have  power  "to  regulate,  license  and  tax  .  .  .  itinerant  doctors, 
itinerant  physicians  and  surgeons,"  while  Section  2581  thereof  provides  that  the 
state  board  of  medical  examiners  may  issue  to  itinerant  physicians  a  license  to 
practice  within  the  state.  But  the  court  does  not  think  that  Section  2581  repeals 
or  limits  the  power  of  Section  700  by  implication  or  by  any  express  language  used 
therein. 

The  power  to  license  conferred  on  cities  and  towns  by  Section  700,  the  court 
says,  is  in  reality  a  grant  of  power  to  enact  police  regulations  for  the  general 


319 

"welfare  of  the  particular  community.  And  it  is  on  this  principle  that  physicians, 
other  professional  men,  and  skilled  workmen  generally  may  be  required  to  procure 
a  license  which  certifies  to  their  fitness  to  pursue  their  respective  callings  in 
which  professional  skill  is  most  necessary,  and  in  which  the  ignorance  of  the 
practitioner  is  likely  to  be  productive  of  barm  to  the  public  and  to  individuals 
having  business  relations  with  them.  What  the  state  may  do  in  its  sovereign 
capacity  it  may  authorize  its  creatures  to  do,  and  the  court  thinks  there  can  be 
no  doubt  of  its  power  to  delegate  to  municipal  corporations  the  enactment  of  such 
local  police  regulations  as  shall  be  deemed  reasonably  necessary  for  the  protection 
of  the  public  in  the  particular  localities.  That  the  legislature  may,  in  the  exercise 
of  its  police  power,  regulate  a  state  license  for  the  practice  of  medicine,  and  at 
the  same  time  authorize  municipalities  to  require  a  license  for  the  practice  thereof 
within  their  boundaries,  the  court  does  not  doubt.  It  would,  in  effect,  be  nothing 
more  than  the  imposition  of  an  increased  charge  for  the  privilege,  and  the  court 
was  cited  to  no  authority  which  holds  this  to  be  beyond  the  power  of  the  state.  If 
the  state  may  thus  act,  it  follows  that  no  inconsistency  necessarily  exists  between 
the  two  acts  under  consideration.  In  one  the  power  is  given  municipalities  to 
license  within  their  confines,  and  in  the  other  a  license  for  the  whole  state  is 
issued,  but  by  implication  it  is  not  effective  where  a  local  license  is  required  until 
such  license  has  been  obtained.  That  a  license  may  be  required  from  the  same 
person  for  the  same  business  by  the  state  and  by  its  municipalities  is  a  rule  of 
general  application. 

The  court  does  not  consider  that  the  ordinance  violates  Section  1  of  the 
fourteenth  amendment  to  the  Constitution  of  the  United  States,  which  provides 
that  "no  state  shall  make  or  enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  citizens  of  the  United  States,  .  .  .  nor  deny  to  any  persoD 
the  equal  protection  of  the  laws." 

Nor  does  the  court  think  the  ordinance  open  to  the  charge  that  it  discriminates 
against  a  non-resident  of  the  city  or  of  the  state.  It  requires  a  license  only  from 
traveling  physicians,  it  is  true,  but  it  nowhere  confines  its  operation  to  traveling 
physicians  who  are  non-residents  of  the  city  of  Fairfield.  If  a  resident  of  said  city 
was  a  traveling  physician  and  sought  to  practice  his  profession  therein,  he  would 
be  as  surely  subject  to  the  ordinance  as  was  the  defendant.  The  ordinarice  is  of 
uniform  operation  because  it  embraces  all  of  the  class  designated  therein. 

Neither  was  the  license  required  unreasonable.  Fifty  dollars  per  year  for  the 
privilege  of  practicing  medicine  is  not  in  and  of  itself  unreasonable  or  exorbitant. 


PRESCRIBING  OF  "TISSUE  FOODS"  IS  THE  PRACTICE  OF  MEDICINE 

State  v.  Bresee,  131  la.  613;  Ilk  N.  W.  ko 

1907 

The  Supreme  Court  of  Iowa  says  that  the  indictment  against  the  defendant 
charged,  not  only  in  general  statutory  terms  that  she  practiced  medicine  without 
a  necessary  certificate,  but  that  she  unlawfully  professed  to  be  a  physician  and 
assumed  the  duties  of  a  physician;  that  she  prescribed  and  furnished  medicine  for 
the  sick,  and  publicly  professed  to  cure  and  heal,  for  a  valuable  consideration.  It 
was  shown  and  admitted  that  she  maintained  an  office  or  place  in  the  city  of 
Council  Bluffs,  Iowa,  where  she  kept  and  sold  to  others  a  preparation  known  as 
"Schuessler's  Tissue  Food,"  the  use  of  which  was  supposed  or  claimed  to  be  a 
benefit  to  the  sick,  but  whether  it  was  sold  or  used  as  a  medicine  or  remedy  for 
diseases,  or  as  an  article  of  diet,  was  a  matter  on  which  the  testimony  was  in 
some  conflict. 

If  the  witnesses  were  to  be  believed,  the  defendant  assured  the  sick  applying  to 
her  of  her  ability  to  cure  them,  and  professed  to  be  able  merely  by  looking  at  them 
to  determine  the  nature  of  their  diseases.  Such  was  her  confidence  in  her  skill 
that  she  boasted  that  she  had  never  lost  a  patient,  and  declared  that  she  would 
not  take  any  patient  whom  she  could  not  cure.  To  those  desiring  her  aid  she  dealt 
out  what  she  claimed  to  be  "bio-chemical  remedies,"  or  tissue  food.  On  her  door 
she  placed  a  card  or  sign  advertising  her  business  as  a  "bio-chemist,"  whatever 
that  may  mean. 


320 

According  to  her  statement,  the  remedies  or  tissue  food  dealt  out  by  her  were 
prepared  by  a  distinguished  German  scientist,  Professor  Schuessler,  who  was 
alleged  to  have  discovered  that  the  human  system  is  made  up  of  fourteen  dif- 
ferent elements  or  properties,  and  that  with  a  sufficient  tissue  food  or  remedy  for 
the  building  up  of  these  elements  or  component  parts  all  diseases  would  become 
curable.  Twelve  of  these  ultimate  elements  and  their  proper  tissue  food  had  been 
discovered  by  Professor  Schuessler,  and,  when  the  other  two  had  been  found,  "you 
simply  need  never  die." 

These  remedies  she  had  in  tablet  form,  and  her  manner  of  dealing  tbem  out 
was  thus  described  by  one  of  the  witnesses,  who  had  applied  to  her  for  this 
valuable  secret  of  earthly  immortality:  "She  said  we  should  come  to  her  because, 
while  the  tablets  did  the  work,  they  should  be  administered  in  just  such  a  form. 
She  would  take  one  bottle,  then  another,  and,  when  people  were  sitting  around  the 
table,  she  would  not  give  them  all  from  the  same  bottle.  She  would  kind  of  give 
them  in  a  certain  way.  They  were  tablets.  She  called  them  'tissue  food,'  I 
believe.  I  don't  know  as  I  ever  heard  her  call  them  that,  but  I  suppose  she  was 
referring  to  the  remedies — the  tissue  food  and  the  benefits  to  be  derived  from  the 
use  of  these  remedies  taken  in  just  such  form  as  she  prescribed.  These  remedies 
were  in  bottles.  My  father  ate  them  from  plates  she  put  them  on,  taking  same 
from  particular  bottles.  I  think  I  asked  her  once  how  she  could  know  which  to 
give  to  the  different  patients.  Her  only  answer  was  she  said  she  never  got  mixed 
up.  I  don't  know  whether  the  manner  in  which  these  remedies  were  to  be  admin- 
istered were  on  the  bottles  or  not." 

Another  witness  said:  "I  live  in  this  city;  am  acquainted  with  defendant; 
have  consulted  her  for  my  ailments  about  two  years  ago  last  August.  I  told  her 
what  my  condition  was.  She  said  she  thought  she  could  help  me.  She  gave  me 
some  tablets  and  some  paste  made  from  the  tablets.  The  paste  was  an  external 
application.  I  took  treatment  several  months,  don't  remember  exactly  how  long. 
I  think  the  price  was  $1  a  treatment.  My  husband  paid  her.  She  was  paid  for 
the  services  rendered  me.  The  number  of  these  tablets  she  gave  me  varied;  some- 
times I  took  more  than  at  other  times.  She  would  give  me  directions  how  to  take 
the  tablets.    I  took  some  of  them  home.    She  directed  me  how  to  take  them." 

At  the  close  of  the  testimony  the  trial  court  instructed  the  jury  that  there 
was  no  evidence  that  the  defendant  publicly  professed  to  be  a  physician,  or  that 
she  assumed  the  duties  of  a  physician,  or  that  she  publicly  professed  to  cure  or 
heal;  and  that  the  only  question  remaining  for  their  consideration  was  whether 
during  the  time  covered  by  the  indictment  she  made  a  practice  of  prescribing,  or 
prescribing  and  furnishing,  medicine  for  the  sick.  The  court  also  instructed  the 
jury  that  the  defendant  had  the  right  to  keep  and  sell  Schuessler's  Tissue  Food 
and  other  proprietary  medicines,  and,  if  a  customer  indicated  to  her  the  nature  of 
his  complaint,  she  could  rightfully  give  her  opinion  what  remedy  she  had  therefor, 
and  state  her  judgment  as  to  which  was  best,  and  give  gratuitous  advice  as  to 
their  use,  but  that  she  would  have  no  right  to  diagnose  a  case  and  determine  for 
the  purchaser  the  character  of  the  remedy  he  should  use. 

The  trial  resulted  in  a  conviction,  the  judgment  for  which  is  affirmed  by  the 
supreme  court. 

The  supreme  court  says  that  it  was  argued  that  to  prescribe  and  furnish 
medicines  is  part  of  duties  of  a  physician,  and,  as  the  trial  court  withdrew  from 
the  jury  the  allegation  of  the  indictment  that  the  defendant  wrongfully  assumed 
such  duties,  the  charge  that  she  unlawfully  prescribed  and  furnished  medicines 
necessarily  fell  with  it.  The  court  thinks  the  reasoning  is  unsound.  The  Iowa 
statute  specifically  and  separately  enumerates  each  of  these  acts;  (a)  Publicly 
professing  to  be  a  physician  and  assuming  the  duties  of  the  profession;  (b) 
prescribing  medicines  for  the  sick;  (c)  prescribing  and  furnishing  medicine  for 
the  sick,  and  provides  that  any  person  making  a  practice  of  either  shall  be  held  to 
be  practicing  medicine  within  the  meaning  of  the  law.  It  is  quite  clear  from  the 
statute  that  the  legislature  did  not  understand  that  these  phrases  are  merely  dif- 
ferent expressions  of  the  same  idea.  Both  expressions  appear  to  have  been  used  in 
order  to  bring  within  the  scope  of  the  act  both  the  person  who  professes  to  be  a 
physician  and  assumes  the  duties  of  that  profession  and  the  person  who,  while 
not  claiming  to  be  a  physician,  and  not  assuming  the  duties  of  the  profession 
generally,  yet  undertakes   to    prescribe   and  furnish  remedies  for  the   sick  and 


321 

afflicted.  There  was  no  error,  therefore,  of  which  the  defendant  could  complain  in 
submitting  the  case  to  the  jury  on  the  theory  that  the  practice  of  prescribing,  or 
prescribing  and  furnishing,  medicines  for  the  sick  is  not  necessarily  included  in 
the  charge  of  publicly  professing  to  be  a  physician  and  assuming  the  duties  per- 
taining to  such  profession. 

Again,  the  point  was  made  that  under  the  trial  court's  instructions  as  to  what 
acts  would  amount  to  prescribing  and  furnishing  medicines,  and  as  to  the  plain- 
tin's  right  to  sell  tissue  food,  there  was  no  evidence  on  which  a  verdict  could  be 
upheld.  But,  on  a  careful  reading  of  the  record,  the  supreme  court  finds  no  such 
lack  of  testimony  in  support  of  the  indictment  as  called  for  its  interference  with 
the  findings  of  the  jury. 

The  instructions  were  to  the  effect  that,  if  the  accused  after  diagnosing  a  case 
undertook  to  determine  for  a  sick  person  applying  to  her  the  character  of  the 
remedy  best  suited  to  his  ailment,  said  act  would  be  prescribing  medicine  for  the 
sick  within  the  meaning  of  the  statute.  The  supreme  court  is  of  the  opinion  that 
this  definition  was  correct  as  far  as  it  went  and,  if  it  was  not  as  full,  exact,  and 
complete  as  might  be  framed,  the  error  was  one  of  which  the  defendant  could  not 
be  heard  to  complain.  The  fact  that  the  defendant  was  careful  to  call  the  article 
which  she  supplied  to  the  sick  "food,"  instead  of  "medicine,"  was  not  at  all 
decisive  of  the  merits  of  the  case.  It  was  evident  she  was  catering  to  the  patron- 
age of  the  sick  who  were  asking  relief  from  their  ills,  and,  if  she  listened  to  their 
statements,  assured  them  of  her  ability  to  help  them,  and  supplied  them  with  her 
alleged  appropriate  remedies  giving  instructions  for  their  application  or  use,  this 
would  seem  to  come  within  the  definition  given  by  the  court,  as  well  as  within  the 
ordinary  and  usual  signification  attached  to  the  words  "prescribing"  or  "prescrib- 
ing and  furnishing  medicines,"  as  they  are  commonly  used  and  understood.  Medi- 
cine as  denned  by  Webster  is  "any  substance  administered  in  the  treatment  of 
disease;  a  remedial  agent;  a  remedy."  The  fact  that  the  substance  so  employed 
as  a  remedial  agent  may  have  value  as  a  food,  and  have  a  tendency  to  build  up 
and  restore  wasted  or  diseased  tissue,  will  not  deprive  it  of  its  character  as  a 
medicine  if  it  be  administered  and  employed  for  that  purpose. 


NO  RIGHT  TO  PRACTICE  MEDICINE  WITHOUT  A  LICENSE 

State  v.  Taylor,  UO  la.  138;  118  N.  W.  301 

1908 

The  Supreme  Court  of  Iowa  says  that  the  defendant  commenced  the  practice 
of  medicine  in  1884,  and  continued  in  the  practice  thereof  without  a  license  until 
indicted  in  this  case.  He  claimed  that,  having  practiced  in  the  state  for  five  con- 
secutive years,  three  years  of  which  time  was  in  one  locality,  he  was  within  the 
exception  of  section  2579  of  the  Iowa  Code,  which  provided  that  the  provisions  of 
the  chapter  shall  not  be  construed  to  prohibit  practice  of  physicians,  as  denned 
therein,  "who  have  been  in  practice  in  this  state  for  five  consecutive  years,  three 
years  of  which  time  shall  have  been  in  one  locality." 

The  first  act  regulating  the  practice  of  medicine  in  Iowa  was  passed  in  1886, 
and  the  law  as  then  enacted  is  substantially  the  law  now  as  found  in  sections 
2576-2583  of  the  Code.  In  the  original  act  an  exception  was  made  as  follows: 
"If  not  a  graduate,  the  person  practicing  medicine  or  surgery  within  this  state, 
unless  he  or  she  shall  have  been  in  continuous  practice  in  this  state  for  a  period 
of  not  less  than  five  years,  of  which  he  or  she  shall  present  to  the  state  board  of 
examiners  satisfactory  evidence  in  the  form  of  affidavits,  shall  appear  before  the 
state  board  of  examiners  and  submit  to  such  examinations  as  said  board  may 
require."  In  section  2579  the  requirement  of  satisfactory  evidence  of  practice  was 
omitted,  and  the  defendant  claimed  that  because  of  such  change  the  legislature 
intended  to  say,  and  did  say,  that  whoever  had  been  in  the  practice  of  medicine 
in  Iowa,  whether  rightfully  or  wrongfully,  for  a  period  of  five  years  before  that 
time,  had  the  right  to  go  ahead  and  practice  without  a  certificate  or  license.  The 
contention  was  manifestly  unsound. 

The  original  act  was  in  force  all  of  the  time  until  the  Code  became  the  law, 
and  the  dropping  therefrom  the  requirement  of  evidence  cannot  be  construed  into 


322 

a  legalizing  act  intended  to  shield  one  who  had  confessedly  violated  the  law. 
Section  9  of  the  act  of  1886  made  it  a  misdemeanor  for  any  person  to  practice 
without  having  complied  with  the  provisions  of  the  act,  but  that  no  penalties  for 
a  violation  thereof  should  be  enforced  prior  to  the  1st  day  of  January,  1887.  It 
is  very  clear  that  after  Jan.  1,  1887,  no  one  could  legally  practice  medicine  with- 
out complying  with  the  act,  or  without  bringing  himself  within  the  exceptions 
therein  provided,  and  this  the  defendant  did  not  do.  He  had  never  qualified  under 
the  exception  of  the  statute  but  was  daily  violating  the  law,  and,  if  his  contention 
that  the  change  referred  to  gave  him  the  right  to  continue  practice  without  a 
certificate  or  license  be  sustained,  the  court  should  have  to  hold  that  he  had 
acquired  such  right  by  practice  in  violation  of  law.  Such  a  holding  would  not 
only  destroy  the  public  protection  intended  by  the  statute,  but  it  would  offer  a 
direct  premium  for  a  practice  wholly  in  violation  of  such  statute.  The  legislature 
had  no  such  intention,  and  the  defendant  was  clearly  not  within  any  exception  to 
the  statute. 


RIGHT  TO  PRACTICE  MEDICINE  NOT  ACQUIRED 

State  v.  Miller,  138  la.  28;  115  N.  W.  493 
1908 

The  Supreme  Court  of  Iowa  says  that  the  point  most  strongly  urged  by 
counsel,  and  the  only  debatable  one  presented  by  the  record,  was  whether  the 
defendant  was  entitled  to  practice  his  profession  without  a  certificate  from  the 
board  of  medical  examiners  under  that  provision  of  Section  2579  of  the  Iowa 
Code  which  exempts  from  a  compliance  with  the  requirements  of  said  statute  all 
physicians  "who  have  been  practicing  in  this  state  for  five  consecutive  years, 
three  years  of  which  time  shall  have  been  in  one  locality."  This  statute  appears 
to  have  been  first  enacted  in  the  year  1886,  and  was  reenacted  in  substantially 
the  same  form  in  the  Code  of  1897. 

As  a  witness,  the  defendant  stated  that  his  early  life  was  spent  in  Iowa;  that 
he  had  practiced  magnetic  healing  since  he  was  10  years  old;  that  for  about 
sixteen  or  seventeen  years  prior  to  the  year  1899  he  had  lived  in  South  Dakota, 
where  he  conducted  a  farm;  that  since  that  date  he  had  lived  six  years  in  Iowa, 
the  last  four  years  of  which  had  been  in  Waterloo;  and  that  during  all  or  most 
of  this  period  he  had  been  practicing  the  healing  art. 

The  court  does  not  think  there  was  any  error  in  excluding  proof  of  the  defend- 
ant's practice  in  Iowa  for  five  years  or  more  prior  to  his  removal  to  Dakota  about 
the  year  1882.  The  exception  made  in  the  statute  was  very  clearly  intended  for 
the  protection  of  such  citizens  of  the  state  as  were  then,  and  for  five  years  prior 
to  the  enactment  of  the  law  had  been  practicing  medicine  within  this  jurisdiction 
(Iowa).  At  that  date  the  defendant  was,  and  for  four  years  had  been,  a  resident 
of  South  Dakota,  and  the  fact  that  he  had  at  an  earlier  time  practiced  medicine  in 
Iowa  for  five  years  did  not  give  him  any  advantage  under  the  provisions  of  the 
act,  over  a  non-resident  practitioner  who  never  resided  in  Iowa. 

In  short,  the  court  thinks  that,  when  fairly  construed,  the  words  "who  have 
been  in  practice  in  this  state  for  five  consecutive  years"  must  be  held  to  have 
reference  to  those  resident  physicians  who  have  been  in  practice  for  five  years 
immediately  prior  to  the  date  of  the  enactment.  Such  is  the  obvious  import  of 
the  language  employed.  , 

Lastly,  the  court  thinks  it  hardly  necessary  to  say  that  proof  that  the  defend- 
ant had  been  engaged  in  the  practice  for  five  years  immediately  prior  to  his  indict- 
ment could  not  avail  to  acquit  him  of  the  offense  charged.  Even  if  that  fact  be 
established,  the  law  prohibiting  such  practice  had  been  in  force  for  a  still  longer 
period,  and  it  would  not  do  to  say  that  the  successful  avoidance  of  prosecution  for 
any  length  of  time  would  operate  to  give  the  offender  a  vested  right  to  continue 
his  defiance  of  the  law  indefinitely. 

A  conviction  of  practicing  medicine  without  first  obtaining  a  certificate  there- 
for from  the  State  Board  of  Medical  Examiners  is  affirmed. 


323 

POWER  OF  STATE  BOARD  TO  REVOKE  CERTIFICATE 

Smith  v.  Stale  Board  of  Medical  Examiners,   140  Iowa  66;  11"!  .V.   II'.   1116 

1908 

The  supreme  court  says  that  the  power  of  the  State  Board  of  Medical  Exam- 
iners to  revoke  the  certificate  of  a  physician  is  contained  in  the  following  clause 
of  Section  2578  of  the  Iowa  Code:  "The  Board  of  Medical  Examiners  may  refuse 
to  grant  a  certificate  to  any  person  otherwise  qualified,  who  is  not  of  good  moral 
character,  and  for  like  cause,  or  for  incompetency  .  .  .  may  revoke  a  certifi- 
cate by  an  affirmative  vote  of  at  least  five  members  of  tlie  board."  It  was  claimed 
that  the  statute  violates  the  provisions  of  the  federal  and  state  constitutions, 
which  declare  that  no  person  shall  be  deprived  of  life,  liberty,  or  property  without 
due  process  of  law,  and.  the  provision  of  the  state  constitution  which  declares  that 
"the  legislative  authority  of  the  state  shall  be  vested  in  a  General  Assembly, 
which  shall  consist  of  a  senate  and  house  of  representatives. 

It  was  contended  that  the  statute  is  unconstitutional  and  void  because  it  does 
not  provide  or  require  that  the  accused  shall  be  notified  in  any  manner  of  the 
proceeding  to  revoke  his  certificate,  or  provide  or  require  that  he  shall  be  given 
an  opportunity  to  appear  and  defend  himself;  and  hence  it  is  possible  for  the 
board  "to  arbitrarily  take  from  the  physician  his  property,  and  deprive  him  of 
the  liberty  to  follow  his  chosen  profession,  without  due  process  of  law,  or  without 
any  process." 

Whether  the  right  to  practice  medicine  be  classed  as  a  property  right,  strictly 
speaking,  or  as  a  mere  privilege,  is  not  material;  for,  whichever  name  be  given  it, 
it  is  a  valuable  right  which  can  not  be  taken  away  without  due  process  of  law, 
the  essential  elements  of  which  are  notice  and  opportunity  to  defend.  But  due 
process  does  not  require  that  any  particular  form  of  proceedings  be  observed,  but 
only  that  the  same  shall  be  regular  proceedings  in  which  notice  is  given  of  the 
claim  asserted  and  an  opportunity  afforded  to  defend  against  it.  And,  while 
statutes  regulating  the  practice  of  medicine  clearly  fall  within  the  police  power 
of  the  state,  they  can  not  be  permitted  to  override  the  constitution,  but  they  must 
be  reasonable,  and,  when  a  valuable  right  is  sought  to  be  disturbed  thereunder, 
the  provision  of  the  constitution  prohibiting  the  taking  of  property  without  due 
process  of  law  is  paramount,  and  must  be  observed. 

In  Beebe  v.  Magoun,  122  Iowa,  94,  in  discussing  the  necessity  of  notice  of 
the  assessment  of  the  cost  of  street  improvements,  this  court  quoted  with  approval 
the  language  of  the  Court  of  Appeals  in  Stuart  v.  Palmer,  74  N.  Y.,  183,  as  fol- 
lows :  "It  is  not  enough  that  the  owners  chance  to  have  notice,  or  that  they  may, 
as  a  matter  of  favor,  have  a  hearing.  The  law  must  require  notices  to  them,  and 
give  them  the  right  to  a  hearing  and  the  opportunity  of  being  heard."  And  this 
rule  is,  the  court  thinks,  supported  by  the  decided  weight  of  authority  and  appli- 
cable to  the  question  here  before  it. 

But,  although  a  statute  may  not  expressly  provide  for  notice,  it  will  not  be 
held  unconstitutional  or  invalid  if  the  requirement  of  notice  may  be  fairly  implied 
therefrom.  In  some  of  the  cases  it  is  said  that  notice  is  to  be  implied  from  the 
very  fact  that  it  is  a  constitutional  requirement,  irrespective  of  particular  pro- 
visions in  the  statutes  apparently  contemplating  that  notice  is  to  be  given. 

Section  2576,  Chapter  17,  of  the  Code,  relating  to  the  practice  of  medicine, 
must  be  considered  in  connection  with  Section  2578  in  determining  the  question 
before  the  court,  for  it  relates  to  the  same  manner,  and  that  section  provides  as 
follows,  so  far  as  the  same  is  material  here :  "The  State  Board  of  Medical  Exam- 
iners .  .  .  shall  hold  regular  meetings  in  May  and  November  and  special 
ones  as  may  be  necessary,  due  notice  thereof  being  given,  at  which  it  shall  dis- 
charge the  duties  contemplated  by  this  chapter.  ...  In  all  examinations 
made  or  proceedings  had  pursuant  to  the  provisions  of  this  chapter,  any  member 
of  the  board  may  administer  oaths  and  take  testimony  in  any  manner  authorized 
by  law." 

The  granting  of  a  certificate  and  its  revocation  are  an  exercise  of  the  police 
power  of  the  state  identical  in  their  objects  and  power.  Also  by  the  express 
terms  of  Section  2576  the  granting  of  a  certificate,  or  the  revocation  thereof,  can 
only  be  done  at  a  regular  meeting,  or  at  a  special  meeting  of  which  due  notice 


324 

has  been  given.  And  the  court  thinks  it  fairly  implies  that  parties  interested 
in  the  matters  pending  before  the  board  shall  be  given  an  opportunity  to  be  heard. 
The  further  provision  that  in  all  examinations  made  or  proceedings  had  pur- 
suant to  the  provisions  of  the  entire  chapter  oaths  may  be  administered  and 
testimony  taken  in  any  manner  authorized  by  law,  in  the  court's  judgment  con- 
templates contests  which  are  possible  only  when  all  interested  parties  are  before 
the  board.  The  board  does  not  act  in  a  judicial  or  legislative  capacity  in  granting 
or  revoking  certificates,  but  it  acts  in  a  ministerial  or  quasi  judicial  capacity. 
And  in  its  ministerial  capacity  it  may,  without  violating  article  3  of  the  constitu- 
tion, determine  the  character  of  notice  and  the  method  and  manner  of  procedure. 
Every  requirement  of  the  law  is  met  if  the  party  be  given  a  fair  and  reasonable 
opportunity  to  be  heard. 

"CHIEOPRACTOK"    GUILTY    OF    PRACTICING    WITHOUT    A    LICENSE- 
VALIDITY  OF  STATUTE  CONFERRING  POWER  ON 
EXAMINING  BOARD 

State  v.  Miller,  l.',6  Iowa  521;  12Jt  2f.  W.  167 

1910 

The  supreme  court  says  that  the  indictment  charged  that  the  defendant  "did 
wrongfully  and  unlawfully  publicly  profess  to  be  a  physician  and  assume  the 
duties  of  a  physician,  and  then  and  there  wrongfully,  falsely  and  unlawfully  did 
publicly  profess  to  cure  and  heal  diseases,  nervous  disorders,  displacements, 
injuries  and  ailments  by  means  of  a  certain  system  and  treatment  known  as 
chiropractic,"  etc. 

He  advertised  as  follows:  "Dr.  F.  M.  Miller,  chiropractor,  .  .  .  Read 
carefully  the  contents  of  this  booklet.  It  will  interest  you.  The  cure  of  disease. 
Cure  of  disease  follows  chiropractic  adjustment  because  chiropractic  removes  the 
cause.  Chiropractic  is  a  distinct  and  complete  drugless  and  knifeless  system  and 
has  nothing  in  common  with  osteopathy,  massage,  Swedish  movement  or  any  other 
system.  Chiropractic  is  successful  in  all  forms  of  disease.  This  means  your  dis- 
ease. If  your  case  is  numbered  among  those  supposed  impossibilities,  do  not 
despair.  Try  chiropractic  and  get  well.  .  .  .  Chiropractic  is  a  common- 
sense  treatment.  It  will  bear  investigation.  It  is  based  on  a  correct  knowledge 
of  the  nervous  tissues.  It  adjusts  all  displacements  and  allows  the  innate  builder 
to  reconstruct  the  broken-down  tissues." 

The  evidence  showed  that  the  defendant  treated  patients  for  a  consideration, 
and  that  he  professed  to  cure  and  heal  diverse  diseases  by  the  use  of  his  system. 
He  gave  no  medicine,  nor  did  he  prescribe  medicine.  His  system  consisted  of 
certain  mechanical  appliances  which  were  used  in  connection  with  hand  manipula- 
tions and  an  electric  vibrator.  The  court  cannot  agree  with  the  contention  that 
the  evidence  wholly  failed  to  show  that  any  offense  was  committed  by  the  defend- 
ant. The  facts  in  the  case  brought  it  clearly  within  the  construction  given  the 
statute  in  previous  decisions.  The  cases  from  other  jurisdictions  cited  by  the 
defendant  were,  of  course,  not  controlling.  In  fact,  most  of  them  were  based  on 
statutes  unlike  that  of  Iowa. 

The  trial  court  received  testimony  that  the  treatment  given  by  the  defendant 
was  beneficial  to  some  of  his  patients,  but  the  jury  were  afterward  instructed  to 
disregard  such  evidence.     The  instruction  was  right. 

The  indictment  was  assailed  on  the  ground  that  it  charged  no  crime,  but  it 
charged  a  violation  of  the  statute  in  substantially  the  language  of  the  latter,  and 
that  was  sufficient. 

Nor  does  the  court  agree  with  the  contention  that  the  Iowa  statute  under 
which  the  prosecution  was  brought  is  unconstitutional.  The  only  new  question 
presented  with  regard  to  it  was  in  the  contention  that  it  makes  an  unwarranted 
delegation  of  authority  to  the  State  Board  of  Health.  The  chapter  under  con- 
sideration provides  that  the  Board  of  Medical  Examiners  shall  consist  of  the 
physicians  of  the  State  Board  of  Health,  and  names  the  subjects  that  shall  be 
covered  by  the  examination.  The  physicians  of  the  State  Board  of  Health  are 
appointed  by  the  governor.     Section  2582  of  the  Iowa  Code  and  Supplement  pro- 


325 

vides  that  all  persons  desiring  to  practice  medicine  in  the  state  must  submit  to  an 
examination,  and  also  present  diplomas  from  some  medical  school  of  recognized 
standing. 

It  was  contended  that  the  power  thus  given  to  the  board  of  examiners  might 
be  so  exercised  as  to  exceed  proper  police  protection,  and  because  of  auch  possi- 
bility the  statute  was  unconstitutional.  But  a  statute  is  not  unconstitutional 
because  it  provides  a  board  for  certain  purposes  and  gives  such  a  board  discretion. 
Such  a  statute  does  not  discriminate  against  any  class  of  citizens.  Nor  does  it 
confer  on  the  board  of  examiners  arbitrary  power,  or  enable  it  to  discriminate  in 
favor  of  any  particular  school  of  medicine.  While  the  board  acts  within  its 
reasonable  discretion,  it  will  be  protected,  but,  when  it  seeks  to  go  beyond  that 
and  to  act  illegally,  the  court  will  interfere.  A  medical  board  of  examiners 
may  prescribe  reasonable  rules  and  regulations  for  the  conduct  of  its  work.  The 
statute  itself  furnishes  no  warrant  for  an  unjust  discrimination,  and  the  courts 
will  not  presume  for  the  purpose  of  holding  it  unconstitutional  that  the  board  will 
exceed  its  power,  or  do  any  unlawful  act. 

There  was  a  conviction  in  this  case  of  practicing  medicine  without  a  license, 
and  there  being  no  substantial  error  in  the  record,  the  judgment  is  affirmed. 


SUFFICIENT  EVIDENCE  OF  PUBLICLY  PROFESSING  TO  PRACTICE 

MEDICINE 

State  v.  Yates,  l.',5  Iowa  332;  12-',  N.  W.  Ilk 

1910 

The  supreme  court  says  that  one  witness  testified  that  the  defendant  said  he 
was  healing  the  sick  and  curing  people.  Another  witness  said  that  he  applied  to 
the  defendant  for  treatment  for  an  arm  injured  by  a  severe  fall  on  the  sidewalk, 
and  was  told  by  the  defendant:  "Take  off  your  coat,  and  I  will  cure  you,  and  it 
wnl  be  all  right  when  you  leave  here,"  after  which  the  defendant  worked  at  him 
for  twenty  minutes.  A  third  witness  testified  that  he  got  acquainted  with  the 
defendant  at  a  boarding  house,  and  heard  him  talk  with  people  about  the  business 
he  was  in:  "He  talked  about  treating  people.  He  told  that  he  rubbed  people  and 
cured  them.  He  said  that  he  was  treating  people  any  place  he  went.  He  did  not 
say  how  many  people  he  treated,  nor  name,  nor  describe  the  treatment  he  gave  his 
patients."  This  witness  said  that  he  applied  to  the  defendant  for  treatment,  and 
was  told  that  he  (the  witness)  "had  a  healing  in  his  throat,"  which  the  defendant 
rubbed,  and  said  he  could  relieve.  The  defendant  gave  him  treatments,  but  he  got 
no  relief.  Subsequently,  in  regard  to  payment,  the  defendant  told  this  witness 
that  he  was  in  the  habit  of  charging  $5  for  three  treatments.  The  witnesses  who 
testified  to  being  treated  said  that  the  defendant  did  not  use  medicine  or  surgical 
instruments.  The  court  thinks  that  there  was  enough  evidence  to  sustain  a  con- 
viction for  publicly  professing  to  practice  medicine  and  to  cure  and  heal  within 
the  general  rule  stated  by  this  court  in  State  v.  Heath,  125  Iowa,  585. 


VIOLATION  OF  MEDICAL  PRACTICE  ACT  BY  "DOCTOR  OF  VITAL 

SCIENCE" 

State  v.  Adkins,  11,5  Iowa  671;  12-',  N.  W.  621 

1910 

The  Supreme  Court  of  Iowa  says  that,  prior  to  having  attained  his  majority 
the  accused  had  led  a  bucolic  life,  and  thereupon  entered  a  "college  of  psychic- 
sarcology"  in  Missouri.  Three  years  were  .devoted  to  the  study  of  psychology, 
neurology,  hygiene,  dietetics,  biology,  anatomy,  diagnosis,  and  actual  practice. 
Having  passed  an  examination  on  all  branches  appertaining  to  the  science  of 
"vital  healing"  he  was  granted  a  "diploma,"  and  the  degree  of  "doctor  of  vital 
science"  conferred  on  him.     Equipped  with  "all  the  rights  and  privileges  pertain- 


326 

ing  to  said  degree,"  he  returned  to  his  father's  house  with  the  benevolent  design 
of&curing  "all  diseases  without  drugs,  medicines,  or  surgical  operations." 

Quite  naturally  he  first  directed  his  attention  to  the  appendix,  insisting  that 
"no  part  of  the  body  is  useless,  but  it  takes  all  and  every  part  to  make  up  the 
perfect  machine."  In  the  local  newspaper  he  wrote  eloquently  of  the  wrongs  per- 
petrated by  modern  surgery,  and  directed  atttention  to  his  "own  peculiar 
methods"  of  healing  by  "natural  laws."  "When  people  learn,"  he  saii,  ''what 
appendicitis  really  is,  they  will  understand  that  the  removal  of  the  vermiform 
appendix  by  a  surgical  operation  is  a  crime  against  Nature.  Then  surgical  opera- 
tions will  be  abandoned  and  rank  thereafter  as  a  cruel  and  barbarous  practice — 
the  outgrowth  of  ignorance  and  stupidity.  .  .  .  Appendicitis  as  well  as  most 
every  kind  of  disease  yields  very  readily  to  the  vital  science  treatment,  which 
.  is  applied  by  Dr.  L.  M.  Adkins'  own  peculiar  methods  and  there  are 
evidences  of  remarkable  cures.  For  testimonials  and  other  information  call  on  or 
address  Dr.  Adkins,"  etc. 

Later  on,  in  sympathetic  exaggeration,  he  again  undertook  to  turn  people  from 
the  surgeon's  knife  to  "vital  science  institute  .  .  .  where  all  manner  of  dis- 
eases are  treated  successfully.  .  .  .  Surgical  operations  to  remove  the 
appendix  have  been  a  costly  experiment  to  humanity.  Not  only  has  the  sufferer 
been  subject  to  the  torture  of  the  surgeon's  knife,  from  which  many  never  recover, 
but,  should  life  be  continued,  a  recent  discovery  of  medical  experts  shows  that 
80  per  cent,  of  those  who  survive  the  operation  for  appendicitis  afterwards  go 
hopelessly  insane.  This  hitherto  unthought  of  calamity  will  bring  sorrow  and 
regret  to  the  homes  of  thousands  of  the  survivors  of  this  terrible  operation.  While 
people  are  suffering  and  dying  with  appendicitis,  the  news  is  being  carried  to  all 
parts  of  the  country  of  the  new  method  known  as  vital  science,  which  cures  appen- 
dicitis in  almost  every  case.  This  method  of  treatment  uses  neither  drugs  nor 
surgical  operations,  but  is  in  perfect  harmony  with  Nature's  laws.  There  is  a 
place  in  this  city  where  the  vital  science  treatment  is  given,  known  as  the  vital 
science  institute,  where  all  manner  of  diseases  are  treated  successfully.  For 
further  information  call  on  or  write  Dr.  L.  M.  Adkins,"  etc. 

He  testified  that  he  had  treated  several  patients,  and  thus  described  his 
method:  "Our  system  of  treatment  is  by  manipulation,  stimulating  the  nerve 
centers  so  as  to  increase  their  vital  force,  the  action  of  the  blood  and  also  the 
action  of  the  muscles  and  all  of  the  organs  of  the  body,  stimulating  them  up  to 
their  normal  action  by  physical  contact." 

Enough  has  been  said  to  indicate  that  the  young  man,  even  though  a  genius  in 
the  healing  art,  both  publicly  professed  and  undertook  to  heal  and  cure  the 
afflicted,  and,  as  this  was  without  first  having  procured  a  license  from  the  state 
board  of  medical  examiners,  he  was  rightly  convicted  of  practicing  without  a 
license;  and  the  judgment  is  affirmed. 


RECOVERING  FEE— LICENSE  REQUIRED 

Underwood  v.  Scott,  1,3  Kan.  11^;  23  Pac.  91,2 

1890 

This  action  was  commenced  in  October,  1886,  before  a  justice  of  the  peace  of 
Crawford  county,  by  the  plaintiff  below,  to  recover  for  medical  services  and  med- 
icine furnished.  The  principal  question  is  whether  the  plaintiff  was  entitled  to 
recover  anything  for  the  medicine  furnished.  The  discussion  of  this  question 
involves  the  construction  of  the  statute  passed  in  1870  to  prevent  empiricism. 
The  trial  court  required  the  plaintiff  to  remit  a  part  of  the  verdict  of  the  jury 
on  the  theory  that  the  plaintiff  was  only  entitled  to  recover  for  the  medicine 
furnished,  and  on  this  theory  the  court  instructed  the  jury.  Was  this  error? 
Was  the  furnishing  of  medicine  alone  the  practice  of  medicine  in  any  of  its 
departments,  within  the  meaning  of  the  statute?  To  hold  that  a  person  who  fur- 
nished medicine  as  a  physician  could  recover  compensation  for  the  medicine  so 
furnished  or  prescribed  would,  in  the  judgment  of  the  court,  render  the  statute 
nugatory;   and  any  unauthorized  person  might  prescribe  for  a  patient,  and  sim- 


327 

ply  charge  for  his  medicine,  and  thus  defeat  the  very  object  of  the  law.  The 
practice  of  medicine  may  be  said  to  consist  in  three  things:  First,  in  judging 
the  nature,  character  and  symptoms  of  the  disease;  second,  in  determining  the 
proper  remedy  for  the  disease;  third,  in  giving  or  prescribing  the  application  of 
the  remedy  to  the  disease.  If  the  person  who  makes  a  diagnosis  of  a  case  also 
gives  the  medicine  to  the  patient,  he  is  practicing  medicine,  within  the  provi- 
sions of  the  statute  in  question;  and  if  unauthorized  to  practice,  or  if  acting  in 
violation  of  the  provisions  of  the  statute,  he  is  not  entitled  to  compensation  for 
the  medicine  which  he  furnishes  at  the  time  as  a  physician.  The  instructions 
of  the  court  that  the  plaintiff  would  recover  for  the  medicine  furnished,  though 
he  might  not  have  been  entitled  to  practice  medicine,  were  erroneous;  and  the 
judgment  of  the  court  below  should  be  reversed.  Judgment  reversed,  and  the 
cause  remanded. 


PRACTICE    IN   ANOTHER   STATE— GOOD    AND    BAD    DIPLOMAS 

State  v.  Wilson,  62  Kan.  621;  6/t  Pac.  23;  52  L.  R.  A.  679 

1901 

The  Supreme  Court  previously  held  that  a  person  of  good  moral  character, 
who  had  practiced  medicine  continuously  for  ten  years  or  more  before  the  taking 
effect  of  "An  act  to  protect  the  people  from  empiricism,  and  to  elevate  the  stand- 
ing of  the  medical  profession"  (chapter  68  of  the  Laws  of  1870;  sections  2302, 
2303,  General  Statutes  of  1899),  is  deemed  to  be  qualified  and  to  have  complied 
with  the  provisions;  but  continuous  practice  for  ten  years  in  violation  of  law, 
after  the  act  was  passed,  confers  no  right  or  authority  on  the  practitioner.  And 
now  it  holds,  on  the  second  appearance  of  that  case  before  it,  that  it  is  no  defense 
to  a  prosecution  under  the  act  to  prove  that  the  person  charged  with  unlawfully 
practicing  medicine  in  violation  of  its  provisions  has  been,  since  the  passage  of 
such  act,  continuously  engaged  in  the  practice  of  medicine  for  a  period  of  ten 
years  or  more  in  another  state,  as,  for  example,  in  Nebraska.  The  contention  on 
behalf  of  the  defendant  was  that,  having  practiced  without  the  state  of  Kansas 
during  a  period  of  ten  years,  he  could  not  be  said  to  be  one  who  had  been  engaged 
"for  ten  years  in  violation  of  law."  But  the  Supreme  Court  answers  that,  in 
the  absence  of  proof  to  the  contrary,  it  will  be  presumed  that  the  laws  of  the 
other  state  referred  to  (Nebraska)  are  the  same  as  those  of  Kansas.  Besides, 
it  says,  it  is  known  of  all  men  that  throughout  the  civilized  world  schools,  col- 
leges, dispensaries,  hospitals  and  institutions  for  clinical  instruction  are  main- 
tained at  public  and  private  expense  for  the  education  of  those  men  and  women 
to  whom  are  committed  the  responsible  duty  of  ministering  to  the  health  and 
endeavoring  to  prolong  the  life  of  human  beings.  All,  or  nearly  all,  of  these 
institutions  issue  certificates  or  diplomas  reciting  the  term  and  course  of  study 
which  has  been  pursued  by  the  student  therein.  And  those  colleges  whose  cur- 
riculum includes  a  complete  course  of  those  studies  which  are  regarded  as  requi- 
site for  a  physician  and  surgeon  to  piirsue  do  uniformly  issue  to  one  who  has 
completed  such  course,  and  exhibited  proficiency  therein,  a  diploma  reciting  such 
facts,  and  evidencing  that  by  reason  thereof  the  graduate  has  been  made  a  doctor 
of  medicine.  Wherefore,  the  court  makes  a  point  of  the  fact  that  in  this  case 
the  defendant  did  not  claim  to  have  attended  any  of  these  schools  of  special  learn- 
ing, nor  claim  that  he  had  devoted  any  time  to  the  study  of  any  of  the  branches 
of  this  learned  profession,  nor  avow  that  in  Kansas  or  elsewhere  he  ever  sub- 
mitted to  an  examination  before  a  board  of  competent  members  of  the  profes- 
sion which  he  sought  to  follow,  and  the  court  holds  that  the  purpose  of  the 
statute  would  not  be  carried  out,  and  the  evident  intent  of  the  legislature  would 
not  be  given  effect,  by  holding  it  sufficient  that  he  had  practiced  in  another  state 
for  more  than  ten  years.  In  such  a  case  as  this,  it  devolves  upon  the  defendant, 
the  court  holds,  to  produce  evidence  tending  to  show  that  he  has  attended  two 
full  courses  of  instruction  and  graduated  in  some  medical  college  in  this  or 
some  foreign  country,  or  a  certificate  of  qualifications  from  some  state  or  county 
medical  society,  as  such  evidence  is  not  accessible  to  the  state,  and  is  peculiarly 


328 

within  the  defendant's  knowledge  and  under  his  control.  To  this,  the  court  adds, 
that  if  the  defendant  should  show,  on  the  new  trial,  which  it  orders  because  the 
judge  usurped  the  functions  of  the  jury  in  practically  directing  it  to  return  a 
verdict  of  guilty,  that  he  had  attended  two  full  courses  of  instruction,  and  grad- 
uated in  some  medical  college  of  this  or  some  foreign  country,  then,  in  the 
absence  of  some  evidence  raising  a  question  about  it,  the  presumption  would  be 
that  such  college  was  respectable.  To  avoid  misunderstanding,  however,  with 
reference  to  the  facts  of  this  particular  case,  it  says  that  it  thinks  the  trial  court 
would  have  been  justified,  for  reasons  appearing  on  the  face  of  the  documents 
themselves,  in  excluding  from  the  jury  the  paper,  which  counsel  for  the  defense 
called  a  "diploma,"  issued  by  the  so-called  Independent  Medical  College  of  Chi- 
cago, and  the  other  paper  purporting  to  have  been  issued  by  a  physio-medical 
society  in  Illinois  (which  latter  was  excluded),  because  neither  of  these  papers 
proved,  nor  tended  to  prove,  that  the.  defendant  had  attended  any  course  of 
instruction  in  either  institution,  or  had  graduated  at  either,  and  because  neither 
of  them  can  be  regarded  as  a  diploma,  nor  as  such  a  certificate  as  is  contemplated 
by  the  Kansas  statute. 


INSUFFICIENT  ALLEGATION  OF  QUALIFICATION 

WestlrooJc  v.  Nelson,  64  Kan.  436;  67  Pac.  884 

1902 

The  Supreme  Court  holds,  that  an  allegation  in  a  bill  of  particulars  filed  for 
the  purpose  of  recovering  an  account  for  medical  and  surgical  services  performed, 
which  alleges  "that  plaintiff  is  a  physician  and  surgeon  duly  entitled  to  practice 
medicine  and  surgery  under  the  laws  of  the  state  of  Kansas,"  is  not  a  sufficient 
allegation  of  qualification  and  authority  under  the  law  to  engage  in  the  practice 
and  recover  compensation  for  services  performed  months  before  the  commencement 
of  the  action  in  which  such  pleading  is  filed.  For  this  reason,  the  court,  in  this 
case,  reverses  a  judgment  obtained  by  a  physician,  holding  that  error  was  com- 
mitted in  overruling  an  objection  to  the  introduction  of  evidence  under  the  plead- 
ings. It  says  that  it  was  essential  to  a  recovery  by  the  physician  that  at  the 
time  of  performing  the  services  he  possessed  the  requisite  qualifications  prescribed 
by  statute.  The  act  expressly  so  declares.  That  such  qualification  may  be  shown, 
it  must  be  pleaded.  Had  the  pleadings  alleged  qualification  and  authority  to 
engage  in  the  practice  of  medicine  and  surgery  at  the  time  of  performance  of  the 
services,  and  no  issue  thereon  had  been  joined  by  proper  denial,  the  allegation  of 
authority  would  have  required  no  evidence  in  its  support.  The  fact  of  proper 
authority  and  qualification  under  the  law  would  have  stood  admitted.  In  the 
light  of  the  authorities,  it  must  be  held  the  allegation  of  qualification  at  the  time 
of  filing  the  pleading  found  in  the  pleading  in  this  case,  was  not  a  sufficient 
allegation  of  authority  to  admit  of  proof  of  proper  qualification  to  follow  the  pro- 
fession at  the  time  the  services  were  alleged  to  have  been  performed,  months  prior 
to  the  filing  of  such  pleading. 


CONSTITUTIONALITY  OF  MEDICAL  PRACTICE  ACT 

State  v.  Wilcox,  64  Kan.  789;  68  Pac.  634 

1902 

The  Supreme  Court  holds,  that  chapter  254  of  the  Laws  of  Kansas  of  1901, 
"An  act  to  create  a  state  board  of  medical  registration  and  examination  and  to 
regulate  the  practice  of  medicine,  surgery  and  osteopathy  in  the  state  of  Kansas, 
prescribing  penalties  for  the  violation  thereof,  and  repealing  chapter  68  of  the 
Session  Laws  of  1870,"  is  a  constitutional  enactment.  It  says  that  if  the  title 
had  been  "An  act  to  regulate  the  practice  of  medicine  and  surgery,"  instead  of 
the  more  elaborate  one  used,  it  would  have  covered  every  provision  of  the  statute, 
and  under  numerous  decisions  would  have  been  considered  as  a  single  subject, 
and  not  void  because  of  its  generality.     The  provisions  fixing  the  standard  and 


329 

testing  the  qualifications  of  medical  practitioners  are  not  prohibitive  in  their 
nature.  It  is  not  an  arbitrary  discrimination,  nor  an  invalid  deprivation  of 
right,  to  provide  that  only  those  possessing  a  knowledge  of  the  human  system, 
of  its  ailments  and  diseases,  and  who  possess  the  skill  to  apply  remedies  and 
practice  the  art  of  healing,  shall  be  allowed  to  practice.  If  such  regulations  and 
conditions  are  adopted  in  good  faith,  and  operate  equally  upon  all  who  may  desire 
to  practice,  and  who  possess  the  required  qualifications,  the  fact  that  the  tests  and 
conditions  imposed  by  the  legislature  may  be  rigorous  will  not  invalidate  the 
legislation.  It  is  to  be  presumed  that  the  board  of  examination  and  registration, 
like  all  other  tribunals  vested  with  such  powers,  will  act  with  judgment  and 
conscience,  and  will  deal  justly  with  all  applicants  for  license.  It  is  vested  with 
discretion  to  determine  the  standing  of  medical  schools  from  which  the  diploma 
comes,  and  also  whether  a  physician  who  submits  to  an  examination  possesses  the 
requisite  character,  learning  and  skill;  but  it  is  not  an  arbitrary,  capricious  and 
unrestrained  discretion.  The  law  requires  that  the  board  shall  exercise  an  honest 
and  impartial  judgment  and  discretion  in  accordance  with  just  rules,  and  if  the 
board  should  depart  from  this  course,  and  should  act  arbitrarily  and  unjustly 
towards  applicants  for  license,  the  courts  are  open  to  them,  and  will  award  them 
relief  and  protection.  The  act  is  not  invalid  because  it  provides  that  "nothing  in 
this  act  shall  be  construed  as  interfering  with  any  religious  beliefs  in  the  treat- 
ment of  diseases,  providing  that  quarantine  regulations  relating  to  contagious 
diseases  are  not  infringed  upon."  The  express  exclusion  of  the  element  of  religious 
belief  in  the  application  of  the  law  was  hardly  necessary.  Religious  freedom  is 
guaranteed  by  the  constitution,  and  without  mention  in  the  statute  would  have 
been  implied.  And  the  court  can  see  nothing  in  this  provision  which  makes  an 
illegal  discrimination  against  or  in  favor  of  any  class  of  physicians.  Neither,  it 
says,  is  there  any  force  in  the  objection  to  the  provision  making  the  statute  inap- 
plicable to  the  administration  of  domestic  medicines,  or  to  gratuitous  services 
which  one  friend  or  neighbor  may  render  to  another.  It  is  the  practice  of  medi- 
cine and  surgery  for  compensation  that  is  sought  to  be  regulated  and  controlled, 
and  not  the  use  of  home  remedies,  nor  the  neighborly  offices  which  one  may  kindly 
and  gratuitously  perform  for  another. 


POWER  OF  BOARD  TO  REVOKE  LICENSE  FOR  IMMORAL  CONDUCT 

William  M.  Meffert  v.  The  State  Board  of  Medical  Registration  and  Examination, 

66  Kan.  710;  12  Pac.  247;  1  L.  R.  A.   (N.  S.)   811 

1903 

Chapter  254  of  the  Laws  of  Kansas  of  1901  provides,  among  other  things, 
that  the  state  board  of  medical  registration  and-  examination  may  refuse  to  grant 
a  certificate  to  any  person  guilty  of  felony  or  gross  immorality,  and  may,  after 
notice  and  hearing,  revoke  the  certificate  for  like  cause.  The  Supreme  Court  says, 
that  a  surfeit  of  authority  might  be  cited  holding  that  the  state,  in  the  exercise 
of  its  police  power,  may  prescribe  the  qualifications  which  a  physician  must 
possess  before  entering  on  the  practice  of  medicine  or  surgery.  The  State  Board 
of  Medical  Registration  and  Examination  is  not  a  judicial  tribunal;  while  it 
may  be  said  to  act  quasi  (as  if)  judicially  it  is  only  a  ministerial  board  and 
performs  no  judicial  functions.  It  is  classed  with  such  boards  as  the  county 
boards  of  equalization,  boards  for  the  examination  of  applicants  for  teachers' 
certificates,  city  councils  in  granting  and  refusing  a  business  or  occupation  license, 
and  numerous  other  boards  of  similar  character.  Such  boards  perform  no  judicial 
functions,  are  not  judicial  tribunals,  and  have  never  been  classed  as  such.  It 
was  contended  that  the  procedure  before  the  board  in  the  admission  and  rejection 
of  evidence  was  violative  of  the  rights  of  Meffert,  in  that  the  evidence  received 
and  acted  on  was  made  up  largely  of  unsupported  accusations,  hearsay  and  street 
rumor,  and  was  not  sufficient  to  sustain  the  findings.  The  provisions  of  the  act 
creating  the  board,  the  court  goes  on  to  say,  plainly  indicate  that  such  investiga- 
tion was  not  intended  to  be  carried  on  in  observance  of  the  technical  rules  adopted 


330 

by  courts  of  law.  The  act  provides  that  the  board  shall  be  composed  of  seven 
physicians.  These  men  are  not  learned  in  the  science  of  law,  and  to  require  of 
a  board  thus  composed  that  its  investigations  should  be  conducted  in  conformity 
to  the  technical  rules  of  a  common  law  court  would  at  once  disqualify  it  from 
making  any  investigation.  It  is  subversive  of  the  morals  of  the  people  and 
degrading  to  the  medical  profession  for  the  state  to  clothe  a  grossly  immoral 
man  with  authority  to  enter  the  homes  of  her  citizens  in  the  capacity  of  a  physi- 
cian. It  was  the  intention  of  the  legislature  to  adopt  a  summary  proceeding  by 
which  the  morals  of  the  people  and  dignity  of  the  profession  might  be  protected 
against  such  a  possibility  without  being  embarrassed  by  the  technical  rules  of 
proceedings  at  law.  Meffert  was  timely  notified  of  the  charges  preferred  against 
him  and  the  time  when  a  hearing  would  be  had  and  was  given  ample  opportunity 
to  refute  such  charges.  The  findings  by  the  board  are  conclusive  on  this  court. 
Next,  it  was  contended  that  the  immoral  conduct  with  which  this  party  was 
charged  was  not  practiced  in  the  line  of  his  profession,  therefore  not  cognizable 
by  the  board,  and  the  court  says  that  it  only  mentions  this  contention  to  condemn 
it.  The  law  is  not  that  the  board  must  find  that  such  person  has  been  grossly 
immoral  with  his  patients,  but  that  he  is  grossly  immoral  in  his  general  habits. 
The  object  sought  is  the  protection  of  the  home  of  the  sick  and  distressed  from 
the  intrusion  therein,  in  a  professional  character,  of  vicious  and  unprincipled  men 
— men  wholly  destitute  of  all  moral  sensibilities.  It  was  not  the  purpose  of  the 
lawmakers  to  clothe  a  man  with  a  certificate  of  moral  character  and  send  him 
out  to  prey  on  the  weak  and  unsuspecting,  on  those  who  would  be  entirely  at  his 
mercy,  and  quietly  await  the  accomplishment  of  that  which  observation  and 
experience  has  taught  us  is  certain  to  follow  before  depriving  such  person  of  the 
endorsement  which  gave  the  opportunity  to  commit  such  wrong.  The  law  dis- 
qualifies one  guilty  of  a  felony.  It  would  hardly  be  contended  that  the  felony  for 
which  a  license  may  be  revoked  must  have  been  committed  on  a  patient  or  against 
the  property  of  a  patient,  or  while  such  physician  was  attending  a  patient.  Nor 
does  the  court  agree  with  the  contention  that  to  deprive  a  physician  of  his  right 
to  practice  medicine  otherwise  than  by  a  judgment  or  forfeiture  by  a  judicial 
tribunal  violates  the  fourteenth  amendment  to  the  constitution  of  the  United 
States,  which  forbids  any  state  to  deprive  any  person  of  property  without  due 
process  of  law.  It  says  that  we  have  seen  that  it  is  within  the  police  power  of 
a  state  to  prescribe  the  qualifications  of  one  desiring  to  practice  medicine,  and 
also  to  provide  for  the  creation  of  a  board  or  tribunal  to  make  the  examination 
and  determine  whether  the  applicant  for  a  license  to  follow  this  profession 
possesses  the  required  qualification,  and,  if  so,  to  issue  to  him  such  license.  It 
must  follow  that  the  state  may  confer  on  the  same  board  or  tribunal  the  power 
to  revoke  such  license,  if  it  should  thereafter  be  made  to  appear  that  the  license 
should  not  have  been  issued,  or  if  for  any  reason  the  holder  thereof  since  its 
issuance  had  become  disqualified.  This  constitutional  provision  is  not  a  restriction 
or  limitation  on  the  police  power  of  the  state  to  pass  and  enforce  such  laws  as  in 
its  judgment  will  inure  to  the  health,  morals  or  general  welfare  of  its  people. 
Such  power  is  reserved  to  the  state,  and  has  been  so  recognized  by  all  courts  since 
the  adoption  of  this  amendment.  Another  contention  was  that  the  state  board  of 
medical  examiners  had  no  power  to  revoke  the  license  theretofore  issued,  because 
the  acts  for  which  the  commission  was  revoked,  if  committed  at  all,  were  com- 
mitted before  the  passage  of  the  law  creating  the  board  and,  therefore,  as  to  such 
acts  the  law  was  ex  post  facto.  But  the  court  says  that  an  ex  post  facto  law  is 
meant  one  which  imposes  a  punishment  for  an  act  that  was  not  punishable  at 
the  time  it  was  committed  or  imposes  an  additional  punishment  to  that  then 
prescribed,  etc.  The  revocation  of  a  license  to  practice  medicine  for  any  of  the 
reasons  mentioned  in  the  statute  was  not  intended  to  be,  nor  does  it  operate  as 
a  punishment,  but  as  a  protection  to  the  citizens  of  the  state;  such  requirements 
go  to  his  qualifications,  and  where  the  qualification  imposed  is  reasonable,  one 
has  no  right  to  complain  that  he  is  deprived  of  the  right  to  practice  his  profes- 
sion because  he  has  not  conformd  to  such  reasonable  regulations.  If  the  revoca- 
tion was  intended  as  a  punishment,  there  might  be  force  in  this  argument,  but, 
since  the  only  purpose  of  the  law  wa3  to  require  a  certain  standard  of  morals  of 
the  physician,  the  argument  is  without  force. 


331 

PRACTICE  OF  MEDICINE  BY  FARMER  WITH  CANCER  CURE— MEANING 
OF  PROVISION  AS  TO  "DOMESTIC  MEDICINE" 

State  v.  Huff,  7/t  Kan.  585;  90  Pac.  279 
1907 

The  Supreme  Court  affirms  a  conviction  on  a  charge  of  violating  the  statute 
whicli  forbids  any  one  to  practice  medicine  who  lias  not  received  a  certificate  of 
cmalification  from  the  state  board  of  medical  registration  and  examination.  It 
says  that  there  was  little  room  for  controversy  as  to  the  facts  in  the  case.  The 
defendant  took  the  stand  in  his  own  behalf,  and  testified  that  he  was  a  farmer ; 
that  he  was  not  a  doctor;  that  he  manufactured  from  vegetables  grown  on  his 
own  farm  what  he  believed  to  be  a  remedy  for  cancer;  that  he  had  u^ed  it  on 
from  50  to  75  different  patients,  one  of  whom  was  Mrs.  Stewart,  the  person 
named  in  the  second  count  of  the  information;  that  he  applied  it  himself,  describ- 
ing the  process  thus:  "I  take  a  little  stick  and  get  a  little  medicine  on  it,  and 
put  it  on  the  cancer,  the  diseased  part,  and  that  works  from  fifteen  minutes  to 
half  an  hour,  until  it  works  the  strength  out  of  the  medicine,  and  I  then  clean  that 
off  and  apply  it  again."  The  state's  evidence  showed,  or  tended  to  show,  that  the 
defendant  had  treated  Mrs.  Stewart  under  a  contract,  by  the  terms  of  which  he 
was  to  receive  $50  down  and  a  like  amount  when  a  cure  should  be  effected;  that 
the  first  $50  had  been  paid  to  him. 

It  was  claimed  on  behalf  of  the  defendant  that  the  evidence,  the  scope  of 
which  was  fairly  indicated  by  the  foregoing  statement,  did  not  warrant  a  con- 
viction under  the  pleading,  inasmuch  as  the  application  of  the  purported  remedy 
was  a  surgical  operation,  while  the  information  charged  only  the  practice  of 
medicine,  and  nowhere  even  mentioned  surgery.  But  the  court  considered  that 
to  discuss  the  technical  distinctions  relied  on  to  sustain  this  contention  would 
be  a  useless  waste  of  effort.  The  court  was  concerned  only  with  the  interpretation 
of  the  Kansas  act,  which  provides  that  for  its  purposes  any  one  shall  be  regarded 
as  practicing  medicine  and  surgery  "who  shall  prescribe,  or  who  shall  recommend 
for  a  fee,  for  like  use,  any  drug  or  medicine  .  .  .  for  the  cure  or  relief  of  any 
.  .  .  infirmity  or  disease  of  another  person."  The  language  quoted  Avas  fol- 
lowed in  the  information,  and,  if  the  defendant's  acts  were  within  its  terms,  it 
was  immaterial  whether  they  also  amounted  to  the  practice  of  surgery. 

But  it  was  further  argued  that  "the  prescribing  and  recommending  denounced 
by  the  act  refers  to  drugs  and  medicines  to  be  used  by  the  patient  himself,"  and 
that  as  the  defendant  in  this  case  applied  the  remedy  he  was  not  within  the  terms 
of  this  part  of  the  statute.  Possibly  the  word  "prescribe"  may  sometimes  have 
the  meaning  thus  attributed  to  it,  although  it  is  not  clear  why  the  same  person 
may  not  prescribe  and  administer  a  remedy.  But  a  broader  intention  is  evidenced 
by  the  accompanying  phrase  "or  recommend  for  a  fee  for  like  use,"  which  appears 
to  have  been  employed  to  guard  against  any  narrow  or  technical  construction. 
The  jury  were  abundantly  justified  in  finding  that  the  defendant  did  not  contract 
for  the  payment  to  him  of  the  $100  either  as  the  purchase  price  of  the  material 
he  furnished,  or  as  compensation  for  his  service  in  applying  it,  but  that  the  charge 
was  essentially  one  for  imparting  his  peculiar  knowledge  of  its  curative  powers, 
and  that  the  transaction  therefore  amounted  to  recommending  a  medicine  for  a 
fee  within  the  letter  and  spirit  of  the  law. 

Several  assignments  of  error  involved  the  consideration  of  the  meaning  of  the 
provision  of  the  medical  act  that  nothing  therein  shall  apply  to  "the  administra- 
tion of  domestic  medicines."  The  trial  court  instructed  the  jury  that:  "The 
term  'domestic  medicines,'  as  used  in  this  law,  means  medicines  as  practiced  by 
unprofessional  persons  in  their  own  families  or  households."  This  instruction  was 
manifestly  based  on  the  definition  of  the  phrase  "domestic  medicine,"  found  in 
several  standard  dictionaries.  The  Century  and  Imperial  define  it  as  "medicine 
as  practiced  by  improfessional  persons  in  their  own  families;"  the  Encyclopedic  as 
"the  practice  or  use  of  medicine  by  unprofessional  persons  in  their  own  house- 
holds." 

Objection  was  taken  to  the  application  made  of  these  definitions  on  the  some- 
what plausible  ground  that  "medicine"  is  there  used  abstractly,  referring  to  the 
science  or  practice  of  medicine,  while  in  the  statute  "medicines"  is  obviously  used 


332 

concretely,  referring  to  substances  as  a  synonym  for  "remedies."  The  force  of 
this  objection  is  lessened  by  having  regard  to  the  entire  phrase  employed  in  the 
statute — "the  administration  of  domestic  medicines."  Although  it  can  hardly 
be  strictly  accurate  to  say  that  the  bare  words  "domestic  medicines"  means  "medi- 
cine as  practiced  by  unprofessional  persons  in  their  own  families,"  the  expression, 
"the  administration  of  domestic  remedies,"  taken  by  itself,  might  well  be  thought 
to  mean  just  that.  Of  course,  if  the  instruction  conveyed  a  correct  idea  as  to  the 
force  of  the  statute,  it  is  not  material  that  it  was  open  to  verbal  criticism. 

The  Kansas  medical  act  does  not  follow  closely  that  of  any  other  state,  but  it 
bears  internal  evidence  of  having  been  modeled  in  part  on  the  Ohio  statute  of 
1900,  where  the  corresponding  language  is  that  the  act  shall  not  be  construed  to 
prohibit  "the  domestic  administration  of  family  remedies."  Precisely  the  same 
expression  is  found  in  the  laws  of  California,  Massachusetts  and  New  Mexico. 
Those  of  Indiana  and  Utah  read,  "the  administration  of  family  remedies;"  of 
Nebraska,  "the  administration  of  ordinary  household  remedies."  In  Illinois,  in  a 
recent  revision,  "the  domestic  administration  of  family  remedies"  was  changed 
to  "the  administration  of  domestic  or  family  remedies."  These  slightly  different 
but  substantially  similar  phrases  seem  intended  to  express  the  same  essential 
thought.  That  they  were  in  such  general  use  when  the  Kansas  statute  was  enacted 
suggests  a  purpose  to  cover  about  the  same  ground  by  the  words,  "the  administra- 
tion of  domestic  medicines;"  that  is,  the  domestic  administration  of  medicine — 
the  administration  of  medicine  in  one's  own  family. 

The  court  quotes  further  from  the  lexicographers,  and  then  says  that  the 
greatest  difficulty  with  the  view  adopted  by  the  trial  court  seems  to  be  that,  as 
the  statute  permits  gratuitous  services  of  all  kinds,  there  could  be  little  or  no 
force  to  a  further  provision  that  any  one  might  administer  medicine  in  his  own 
family,  inasmuch  as  it  can  hardly  be  thought  to  have  been  within  the  contempla- 
tion of  the  legislature  that  a  charge  would  ever  be  made  for  such  administration. 
This  difficulty  is  so  serious  that  rather  than  attempt  its  solution  the  court  prefers 
to  inquire  whether  under  any  reasonable  view  of  the  law  the  defendant  could  have 
been  prejudiced  by  the  instruction  referred  to.     It  thinks  that  he  could  not. 

The  defendant's  attorney  maintained,  in  effect,  that  no  definition  of  the  word 
"domestic"  was  necessary;  that  it  is  a  primitive  word,  not  capable  of  being  made 
clearer  by  other  terms;  that  only  confusion  could  result  from  an  attempt  to 
explain  it;  that  it  should  have  been  left  to  the  jury  to  say  what  domestic  medi- 
cines were,  and  whether  the  substance  applied  by  the  defendant  was  a  domestic 
medicine.  To  this  the  court  can  not  agree.  There  are,  of  course,  it  says,  some 
words  Avhich  are  so  common  and  so  well  understood  that  they  require  no  defini- 
tion; but  "domestic"  is  not  one  of  them.  It  is  susceptible  of  a  variety  of  mean- 
ings, and  shades  of  meaning,  according  to  the  connection  in  which  it  is  employed. 
As  used  in  the  statute,  the  court  does  not  believe  that  it  referred  to  medicines  of 
home  manufacture,  or  to  those  manufactured  from  vegetables  grown  at  home.  If 
it  did  not  have  the  precise  meaning  attributed  to  it  by  the  trial  court  it  must  have 
had  much  the  same  force  as  in  the  pharmacy  act.  No  other  reasonable  construc- 
tion occurs  to  the  supreme  court,  and  none  was  suggested.  There  it  is  provided 
that  "in  rural  districts,  where  there  is  no  registered  pharmacist  within  five  miles, 
it  shall  be  lawful  for  retail  dealers  to  procure  license  from  the  board  of  pharmacy 
at  a  fee  of  $2.50  annually,  to  sell  the  usual  domestic  remedies  and  medicines."  In 
determining  the  meaning  of  this  the  court  is  aided  by  judicial  and  legislative 
construction. 

The  phrase  "domestic  medicines,"  referring  to  those  remedies  which  are  in  fact 
used  by  a  non-professional  person  in  his  own  home,  appears  to  have  been  diverted 
from  its  original  and  literal  import,  perhaps  in  part  by  the  addition  of  the  quali- 
fication "usual,"  so  as  to  signify  such  substances  as  are  commonly  kept  by  non- 
professional persons  in  their  own  homes  for  use  as  remedies  in  the  absence  of  a 
physician,  being  necessarily  substances  the  effect  of  which  is  a  matter  of  general 
knowledge,  so  that  no  special  training  is  required  for  their  safe  administration. 
If  this  signification  be  accepted  as  that  intended  in  the  medical  law,  it  is  obvious 
that  cases  may  arise  in  which  it  is  proper  to  submit  to  a  jury  the  question  whether 
a  particular  remedy,  which  a  defendant  may  be  charged  with  administering  under 
such  circumstances  as  to  make  the  act  unlawful,  was  a  domestic  medicine;  but  no 
such  situation  was  presented  here.    There  was  nothing  in  the  evidence  in  this  case 


333 

to  suggest  that  the  Bllbstance  applied  hy  tlie  defendant  was  one  in  common  use 
or  one  the  effect  of  which  was  generally  understood. 

Apart  from  this,  other  considerations  compel  the  conclusion  stated.  The 
statute  in  general  terms  forbids  one  not  having  a  certificate  to  practice  medicine. 
It  adds  that  any  person  shall  be  regarded  as  practicing  medicine  who  shall  pre- 
scribe or  recommend  for  a  fee  for  like  use  any  drug  or  medicine;  that  registered 
osteopaths  may  practice  their  profession,  but  "shall  not  administer  drugs  or 
medicine  of  any  kind;"  and  that  nothing  in  the  act  shall  "apply  to  the  administra- 
tion of  domestic  medicine"  or  "prohibit  gratuitous  services."  It  would  defeat 
the  manifest  purpose  of  the  law  to  hold  that  under  these  provisions  a  defendant, 
charged  and  proved  to  have  received  money  for  recommending  a  certain  substance 
as  a  cure  for  disease,  might  exculpate  himself  by  showing  that  the  substance  he 
recommended  was  a  domestic  medicine,  in  the  sense  that  it  was  a  well-known 
remedy,  the  effect  of  which  was  a  matter  of  common  knowledge.  A  non-profes- 
sional person  is  permitted  under  the  law  to  administer  domestic  medicines,  but 
not  to  take  pay  for  recommending  their  use.  The  theory  of  the  state  is  that  one 
who  proposes  to  ask  and  receive  compensation  for  advice  as  to  the  use  of  medicines 
thereby  holds  himself  out  as  possessed  of  special  and  peculiar  information  on  the 
subject,  and  that  it  is  the  province  of  the  state  to  see  that  he  possesses  it,  or  in 
default  of  proof  thereof  to  prevent  his  making  the  unfounded  claim  a  source  of 
revenue.  To  the  charge  that  an  incompetent  person  had  unlawfully  taken  pay 
for  recommending  the  use  of  a  particular  remedy  it  is  no  answer  to  say  that  the 
remedy  is  one  the  effect  of  which  is  a  matter  of  common  knowledge,  and  which 
for  that  reason  may  be  administered  by  any  one  without  a  violation  of  the  law. 

Under  the  defendant's  own  statement  he  was  guilty  of  the  offense  charged 
against  him,  if,  for  a  fee,  he  recommended  the  use  of  his  medicine  as  a  remedy 
for  cancer,  whether  it  was  a  "domestic  medicine"  or  not.  The  jury  by  their  ver- 
dict found  that  he  did  so,  and  the  evidence  abundantly  justified  the  verdict.  The 
instruction  referred  to  therefore  could  not  have  prejudiced-  him,  and  constituted 
no  error  of  which  he  could  complain. 


"CHIROPRACTIC"   THE   PRACTICE    OF   MEDICINE 

State  v.  Johnson,  84  Kan.  Jfll ;  111,  Pac.  390 

1911 

The  supreme  court  holds  that  a  statute  creating  a  state  board  of  medical 
registration  and  examination  and  regulating  the  practice  of  medicine,  surgery, 
and  osteopathy,  was  constitutional  and  embraced  within  its  terms  one  who  with- 
out registration,  examination,  or  license  from  such  board,  and  for  pay,  practiced 
or  attempted  to  practice  chiropractic  by  pretending  to  adjust  the  spine  of  one 
afflicted  with  bodily  infirmities,  or  who  advertised  to  treat,  for  pay,  by  chiro- 
practic spinal  adjustment,  persons  thus  afflicted.  The  court  said:  "Webster's 
New  International  Dictionary  defines  'chiropractic'  as:  'A  system  of  healing  that 
treats  disease  by  manipulation  of  the  spinal  column.'  Counsel  for  appellee  advises 
us  that:  'The  chiropractor  claims  that  all  the  diseases  which  are  in  any  way 
affected  by  his  adjustments  are  caused  by  the  partial  displacement  of  the  vertebrae, 
thus  causing  the  nerves  which  pass  through  the  openings  in  the  vertebra?  to  press 
against  the  sides  of  the  openings  and  prevent  the  life  fluid  from  flowing  freely 
through  the  nerve  to  the  part  of  the  human  system  to  which  the  particular  nerve 
reaches.  Diseases  not  caused  by  the  pressing  of  the  nerves  against  the  sides  of 
these  openings  the  chiropractor  does  not  in  any  way  treat.  The  chiropractor 
claims  that  the  only  treatment  so  called  which  he  uses  is  not  a  treatment,  but 
merely  an  adjustment  of  the  vertebra?,  which  restores  the  vertebrae  and  the  nerves 
to  their  normal  position  and  thus  removes  the  cause  of  the  disease.  He  does  not 
practice  surgery  or  medicine  and  does  not  use  any  other  manipulations  whatever 
than  the  adjustment  of  the  vertebra?.'  But  the  language  of  the  1908  amendment  is 
very  broad,  and  even  under  the  foregoing  description  of  chiropractic  it  may  well 
be  said  that  one  whose  vertebra?  are  partially  displaced,  causing  impairment  of 
nerve  function,  is  one  afflicted  with  bodily  infirmity,  and  that  one  who  restores 
the  functional   activity  of  the  nerve  on  which    the    maladjusted  vertebra?   had 


334 

formerly  pressed  is  treating,  or  attempting  to  treat,  such  afflicted  person.  It  may- 
be argued  that,  giving  the  entire  language  a  close,  critical,  and  discriminating 
meaning  and  construction,  this  method  of  so-called  'treatment'  is  in  no  sense  the 
product  of  medicine  or  surgery,  and  would,  indeed,  come  more  nearly  under  the 
term  'osteopathy.'  But  the  manifest  object  and  intent  of  the  legislature  was  to 
protect  the  public  from  ignorance  and  imposition  in  the  healing  art.  Osteopathy 
is  carved  out  as  a  separate  department,  and  registration  and  license  are  required, 
while  its  practitioners  are  prohibited  from  giving  medicine  and  performing  sur- 
gical operations;  that  is,  from  practicing  medicine  and  surgery  as  distiaguished 
from  osteopathy.  But  'medicine  and  surgery,'  which  the  appellee  is  charged  with 
attempting  to  practice,  by  common  use  and  adjudged  meaning  cover  a  wide  por- 
tion of  the  domain  of  healing,  and  may  and  should  be  held  to  cover  the  case  of 
one  who,  not  claiming  to  be  a  physician  or  surgeon,  really  practices  osteopathy 
under  another  guise  without  possessing  the  qualifications  required  of  the 
osteopath."  

INFORMATION    FILED    WITH    WARRANT    SUFFICIENT    NOTICE    OF 

CHARGES 

Driscoll  v.  Commonwealth,  Commonwealth  v.  Rice,  93  Ky.  393;  20  S.  W.  JfSl; 

U  Ky.  Laio  Rep.  376 
1892 

M.  Driscoll  was  convicted  of  practicing  medicine  without  authority,  and 
appeals.     Affirmed. 

Information  against  C.  W.  Rice  for  practicing  medicine  without  authority. 
From  a  judgment  sustaining  a  demurrer  to  the  information  the  commonwealth 
appeals.     Reversed. 

These  two  cases,  involving  the  same  question,  are  considered  together. 

An  act  was  passed  in  1874  to  prevent  incompetent  physicians  and  surgeons 
from  practicing.  This  enactment  has  been  amended  from  time  to  time,  and  by  the 
act  of  April  25,  1888,  it  is  provided  that  there  shall  be  a  registration  of  all 
physicians  in  the  county  court  of  each  county,  and  "that  on  and  after  the  first  day 
of  April,  1889,  it  shall  be  unlawful  for  any  person  to  practice  medicine  in  any  of 
its  departments  within  the  limits  of  this  state  who  has  not  exhibited  and  regis- 
tered in  the  county  clerk's  office  of  the  county  where  he  is  practicing,  or  intends 
to  commence  the  practice  of,  medicine,  his  authority  for  practicing  medicine."  The 
act  was  again  amended  on  the  24th  of  May,  1890,  dispensing  with  the  indorse- 
ment of  a  medical  school  or  medical  society  when  the  diploma  was  obtained  out 
of  the  state,  and  requiring  the  indorsement  to  be  made  by  the  state  board  of 
health.  This  last  amendment  does  not  apply  to  cases  where  physicians  have  prior 
thereto,  by  complying  with  the  previous  enactments  on  the  subject,  entered  upon 
the  practice  of  their  profession,  and  affects  only  those  who  have  failed  to  comply 
with  the  provisions  of  the  former  statute,  or  who,  since  the  passage  of  the  act  of 
1890,  have  commenced  the  practice  without  complying  with  its  provisions.  If 
Driscoll,  who  seems  to  have  been  practicing  his  profession  before  the  act  of  1890 
was  passed,  had  complied  with  the  law  in  existence  prior  to  that  time,  his  right 
to  practice  could  not  be  questioned.  The  act  of  25th  of  April,  1890,  is  not  retro- 
active, nor  should  such  a  construction  be  given  it.  He  produces  a  diploma  from 
the  Starling  Medical  College,  located  in  the  state  of  Ohio.  It  is  agreed  that  it  is 
a  chartered  institution,  and  a  reputable  college.  In  the  month  of  March,  1889,  he 
registered  in  the  Jefferson  county  clerk's  office  by  presenting  his  diploma  with  the 
indorsement  of  one  Kalfus,  who  was  the  secretary  of  the  board  of  regents,  Ken- 
tucky School  of  Medicine.  Kalfus  had  no  authority  to  indorse  diplomas,  nor  was 
he  a  member  of  the  faculty  of  the  Kentucky  school ;  still  on  his  statement  that  he 
had  the  authority  to  make  the  indorsement,  the  appellant  Driscoll  registered.  In 
April,  1889,  he  also  sent  his  diploma  to  Dr.  McCormick,  at  Bowling  Green,  for 
indorsement,  and  it  was  returned  without  explanation.  The  appellant  seems  to 
have  made  an  effort,  at  least,  to  comply  with  the  law,  but  failed  to  have  the 
indorsement  as  required  prior  to  the  act  of  the  25th  of  April,  1890,  and  it  is  not 
pretended  that  he  has  the  indorsement  required  by  the  provisions  of  that  act.  We 
perceive  no  constitutional  objection  to  any  of  the  provisions  of  the  act,  unless  they 


335 

are  so  unreasonable  as  to  preclude  those  qualified  from  practicing  their  profes- 
sion. We  see  no  reason  for  denying  the  right  of  the  legislature  to  enact  laws  for 
the  protection  of  the  people  by  requiring  those  who  undertake  to  practice  a  profes- 
sion to  give  evidence  of  their  qualifications  and  skill  by  the  exhibition  of  a  license 
from  those  who,  in  the  legislative  judgment,  arc  competent  to  determine  whether 
or  not  the  applicant  has  the  necessary  qualifications  to  practice  the  particular  pro- 
fession. The  citizen,  of  necessity,  when  diseased,  must  employ  the  physician,  and 
the  lawyer  when  his  right  of  person  or  property  has  been  violated.  The  entire 
public  is  interested  in  knowing,  or  in  having  the  means  of  ascertaining,  whether 
the  physician  it  desires  to  employ  has  a  sufficient  knowledge  of  medicine  to  enable 
him  to  practice  his  profession;  and  for  the  welfare  and  safety  of  the  citizens  the 
legislature  may  say  that  you  shall  not  practice  medicine  unless  you  have  the 
indorsement  of  a  board  skilled  in  the  profession.  The  patients  of  the  physician 
must  rely  on  his  knowledge  of  medicine,  and  the  mode  of  administering  it;  and  the 
entire  public  being  interested  in  having  physicians  learned  in  the  profession,  it  is 
competent  for  the  legislature  to  prescribe  the  mode  of  determining  the  qualifica- 
tions of  those  who  propose  to  embark  in  the  practice.  The  constitutional  question 
has  been  raised  and  decided  by  many  courts,  all  holding  that,  when  the  conditions 
imposed  upon  the  profession  by  the  lawmaking  power  before  one  can  enter  upon 
the  practice  are  reasonable,  they  must  be  complied  with,  or  the  penalty  imposed 
will  be  enforced.  The  judgment  as  to  Driscoll  is  affirmed,  this  court  further  hold- 
ing that  the  information  filed  with  the  warrant,  and  upon  which  that  writ  issued 
from  the  city  court,  gave  to  the  appellant  sufficient  notice  of  the  charge  made 
against  him. 

In  the  ease  of  the  appellee  Rice,  unless  he  had  been  a  practitioner  ten  years 
before  the  passage  of  the  act  of  1874,  it  was  his  duty  to  comply  with  the  pro- 
visions of  that  act.  The  information  on  which  the  warrant  was  issued,  and  that 
must  be  regarded  as  the  complaint,  states  that  the  appellant  registered  by  stating 
that  he  had  been  a  practitioner  for  twelve  years  prior  to  the  year  1889,  when  the 
act  required  that  he  should  have  practiced  ten  years  prior  to  the  passage  of  the 
law  of  1874.  If,  therefore,  Rice  had  not  practiced  medicine  ten  years  prior  to  the 
act  of  1874,  he  has  been  violating  its  provisions  since,  if  he  has  continued  to  prac- 
tice. It  is  an  unreasonable  construction  to  hold  that  one  can  become  qualified  to 
practice  by  the  mere  lapse  of  time  after  the  law  has  been  enacted,  when  he  is 
violating  its  letter  and  spirit  every  day  that  he  fails  to  comply  with  its  provisions. 
We  think,  on  demurrer,  that  the  information  is  sufficient,  and  the  same  technical 
rule  should  not  be  applied  in  such  a  proceeding  as  in  an  indictment;  but,  if  it  is 
to  be  so  held,  the  failure  to  register  as  required  by  the  statute  is  distinctly  alleged 
in  the  information.  As  to  Rice,  the  judgment  is  reversed,  and  remanded  for  pro- 
ceedings consistent  with  this  opinion. 


OSTEOPATHY 

Nelson  v.  State  Board  of  Health,  108  Ey.  769;  51  8.  W.  501;  22  Ey.  Law  Rep. 

438;  50  L.  B.  A.  383 
1900 
The  decision  of  the  Court  of  Appeals  is  very  largely  one  of  statutory  construc- 
tion. First,  the  statute  regulating  the  practice  of  medicine  in  that  state  requires 
the  State  Board  of  Health  to  issue  a  certificate  to  any  reputable  physician  having 
a  diploma  from  a  reputable  medical  college,  without  any  discrimination  against 
any  peculiar  school  or  system  of  medicine.  The  term  "physician,"  as  used  therein, 
the  court  holds,  refers  to  those  exercising  the  calling  of  treating  the  sick  by  med- 
ical agencies,  as  commonly  practiced  throughout  the  state  at  the  time  the  act  was 
passed.  The  term  "medical  college"  refers  to  those  schools  of  learning  teaching 
medicine  in  its  different  branches,  at  which  physicians  at  that  time  were 
educated,  or  schools  of  that  character  organized  since.  At  such  an  institution  an 
essential  part  of  the  instruction  was  in  teaching  the  nature  and  effects  of  med- 
icines, how  to  compound  and  administer  them,  and  for  what  maladies  they  were 
to  be  used.  Surgery  was  also  an  essential  part  of  the  instruction.  But  osteop- 
athy teaches  neither  therapeutics,  materia  medica,  nor  surgery.  Bacteriology  is 
also  ignored  by  it.     Hence,  the  court  holds  that  a  school  of    osteopathy  which 


336 

teaches  neither  of  these  branches  can  not  be  regarded  as  a  reputable  medical  col- 
lege, within  the  meaning  of  the  statute.  The  title  of  this  act  is,  "An  act  to  pro- 
tect citizens  of  this  commonwealth  from  empiricism."  The  act,  the  court  therefore 
holds,  is  "an  act  to  protect  the  people  of  this  commonwealth  from  the  practice  of 
medicine  founded  on  mere  experience,  without  the  aid  of  science,  or  a  knowledge 
of  principles."  And  as  the  board  is  only  authorized  to  issue  a  certificate  to  a 
reputable  physician  having  a  diploma  from  a  reputable  medical  college,  and  no 
discrimination  is  allowed  against  any  peculiar  school  or  system  of  medicine,  the 
court  holds  that  the  penalties  provided  by  the  last  section  of  the  act  must  be  lim- 
ited to  that  which  is  referred  to  in  the  title  and  previous  sections — the  practice  of 
medicine  in  some  of  its  branches  in  the  state  (Kentucky)  ;  and  the  words,  "who 
shall  practice  medicine  or  attempt  to  treat  any  sick  or  afflicted  person  by  any 
system  or  method  whatsoever,  for  reward  or  compensation,  without  first  com- 
plying with  the  provisions  of  this  law,"  must  be  held  to  refer  to  physicians  or 
surgeons  belonging  to  some  school  or  system  of  medicine  practicing  or  desiring  to 
practice  medicine  in  Kentucky,  as  provided  in  the  preceding  section.  In  other 
words,  taking  the  statute  as  a  whole,  the  court  does  not  think  that  it  was  designed 
to  do  more  than  regulate  the  practice  of  medicine  by  physicians  and  surgeons, 
while  an  osteopath,  it  holds,  is  in  no  proper  sense  a  physician  or  surgeon,  and 
does  not  practice  medicine.  He  is  rather,  it  holds,  on  the  plane  of  a  trained 
nurse.  Services  in  kneading  and  manipulating  the  body,  it  says,  are  no  more  the 
practice  of  medicine  than  services  in  bathing  a  patient  to  allay  his  fever  or  the 
inflammation  of  a  wound.  And  if  by  kneading  and  manipulating  the  body  of  the 
patient  he  can  give  relief  from  suffering,  it  sees  no  reasons  why  he  should  not  be 
paid  for  his  labor  as  other  laborers.  So  it  holds  that  so  long  as  he  confines  him- 
self to  osteopathy,  kneading  and  manipulating  the  body,  without  the  use  of  med- 
icine or  surgical  appliances,  he  violates  no  law,  in  Kentucky,  and  the  State  Board 
of  Health  should  not  molest  him.  But,  it  at  the  same  time  declares,  he  may  not 
prescribe  or  administer  medicine  or  perform  surgery. 


LICENSE  A  "RIGHT"— VALIDITY  OF  ACT  AS  TO  REVOKING 

Matthews  v.  Murphy,  23  Ky.  Law  Rep.  750;  63  8.  W.  785;  5k  L.  R.  A.  1,15 

1901 
The  license  to  practice  medicine  which  one  receives,  the  Court  of  Appeals  of 
Kentucky  declares,  is  certainly  a  "right"  or  "estate."  Then  it  takes  up  the  ques- 
tion of  whether  a  person  having  fitted  himself  for  this  learned  profession,  and 
having  been  licensed  to  practice  the  same,  the  state  board  of  health  has  the  right 
to  charge  him  with  "unprofessional  conduct  likely  to  deceive  or  defraud  the 
public,"  and  erect  a  standard  by  which  that  conduct  is  to  be  measured,  and  if  in 
its  judgment  he  does  not  meet  its  requirements  summarily  deprive  him  of  a  right 
or  estate  or  both.  Referring  to  the  Kentucky  statute  bearing  on  the  subject,  one 
section  of  which  provides  that  the  board  may  refuse  to  issue  a  certificate  to  prac- 
tice medicine  to  any  individual  guilty  of  grossly  unprofessional  conduct  of  a  char- 
acter likely  to  deceive  or  defraud  the  public;  and  it  may,  after  due  notice  and 
hearing,  revoke  such  certificates  for  like  cause,  the  court  remarks  that  the  statute 
does  not  prescribe  the  manner  by  which  a  physician  may  regulate  his  conduct. 
It  does  not  advise  him  in  advance  what  act  or  acts  may  be  in  violation  of  its 
provisions.  He  is  not  told  what  is  lawful  or  unlawful.  He  might  do  an  act  which 
he  regarded  as  entirely  proper,  which  neither  violated  moral  law  or  involved  tur- 
pitude, still  such  acts  might,  in  the  opinion  of  the  state  board  of  health,  amount 
to  unprofessional  conduct,  and  which  in  its  opinion  did  or  was  calculated  to 
deceive  or  defraud  the  public.  The  physician  who  did  the  act  of  which  complaint 
was  made  before  the  state  board  of  health  could  not  know  at  the  time  the  act  was 
done  what  standard  would  be  thereafter  erected  by  the  board  by  which  its  effect 
was  to  be  determined.  As  the  statute  does  not  advise  him  beforehand  as  to  what 
is  unprofessional  conduct,  he  could  not  knowingly  or  intentionally  be  guilty  of  it. 
In  other  words,  the  legislature,  in  effect,  has  attempted  to  commit  to  the  state 
board  of  health  the  right,  after  the  physician  has  done  some  act,  to  determine 
what  its  effect  is  to  be,  and  if,  in  its  judgment,  he  should  be  deprived  of  the  right 


337 

to  practice  his  profession,  it  can  inflict  the  punishment  upon  him  by  revoking  his 
license.  Besides,  what  the  present  state  board  of  health  might  consider  unprofes- 
sional conduct  might  be  adjudged  by  another  board  not  to  be.  For  such  reasons, 
the  court  does  not  think  the  Kentucky  statute  is  valid  in  so  far  as  it  attempts 
to  confer  upon  the  state  board  of  health  the  right  to  revoke  a  license  which  has 
been  granted  by  it  to  a  physician  to  practice  his  profession.  This  conclusion, 
however,  applies  alone  to  so  much  of  the  statute  as  authorizes  the  board  to  revoke 
a  physician's  license  to  practice  medicine  for  unprofessional  conduct.  That  part 
of  the  statute  which  authorizes  the  board  to  pass  upon  the  qualifi- 
cations of  persons  to  practice  medicine  and  to  license  them,  the  court 
says,  is  valid,  though  if  the  board  should  exercise  that  power  either  arbitrarily  or 
capriciously,  the  party  injured  may  obtain  relief  in  the  courts.  It  also  says  that 
if  the  legislature  desires  to  declare  for  what  acts  or  conduct  a  physician's  license 
to  practice  medicine  shall  be  revoked,  it  is  competent  to  do  so,  and  to  vest  in  some 
tribunal  the  authority  to  investigate  and  try  the  charge  which  may  be  made 
under  such  a.  statute.  

VIOLATION  OF  PRACTICE  ACT  ONE  CONTINUOUS  OFFENSE 
Wilson  v.  Commonwealth,  119  Ky.  169;  26  Ky.  Law  Rep.  685;  82  S.  IT.   ',  r, 

1904 
Section  4  of  the  Kentucky  act  of  May  10,  1886,  regulating  the  practice  of 
dentistry,  provides  that  "any  person  who  shall,  in  violation  of  this  act,  practice 
dentistry  or  dental  surgery  in  the  state  of  Kentucky,  for  fee  or  reward,  shall  be 
subject  to  indictment  by  the  grand  jury  of  the  county  in  which  the  offense  is 
committed;  and,  on  conviction,  shall  be  fined  in  the  sum  of  not  less  than  fifty  dol- 
lars nor  more  than  two  hundred  dollars  for  each  offense."  The  question  was 
raised,  whether  or  not  the  offense  denounced  by  the  statute  is  of  such  continuous 
nature  as  to  subject  the  violator  to  only  one  conviction  for  the  whole  period  of 
time  next  before  the  institution  of  the  prosecution,  or  is  it  of  such  a  character  as 
that  each  act  of  practice  constitutes  a  separate  offense?  The  Court  of  Appeals  of 
Kentucky  says  that  it  is  apparent,  upon  very  slight  consideration,  that  if  each 
time  an  unregistered  dentist  pulls  a  tooth  he  is  subject  to  a  fine  of  from  $50  to 
$200,  in  a  short  while  these  would  aggregate  so  large  a  sum  as  to  make  payment 
impossible,  and,  as  a  result  the  defendant  might  lie  in  jail  a  large  part  of  his  life. 
Such  a  conclusion  is  not  to  be  reached,  unless  constrained  by  the  very  letter  of 
the  statute.  We  are  not  without  high  authority,  as  well  as  sound  reason,  against 
the  cumulative  construction.  So  the  court  decides  against  it,  or  that  the  offense 
denounced  by  the  statute  is  of  such  continuous  nature  as  to  subject  the  violator 
to  only  one  conviction  for  the  whole  period  of  time  next  before  the  institution  of 
the  prosecution.  The  first  case  cited  on  the  subject  is  the  English  one  of  Apothe- 
caries v.  Jones,  1  Q.  B.  89,  where  the  court  says  that  there  was  involved  an  act 
similar  in  principle  to  the  one  here  under  consideration.  The  apothecaries  act  of 
1815  (55  Geo.  Ill,  c.  194,  sec.  20)  provided  that  "any  person  who  shall  'act  or 
practice  as  an  apothecary'  without  a  certificate  is  liable  to  a  penalty  'for  every 
such  offense,'  "  The  defendant  had  practiced  as  an  apothecary  without  a  certifi- 
cate, and  given  medical  advice  and  supplied  medicine  to  three  different  persons  at 
different  times  on  the  same  day,  and  it  was  held  that  the  words  "act  or  practice 
as  an  opothecary"  were  directed  against  an  habitual  or  continuous  course  of  con- 
duct, and  that  the  defendant  was  not  guilty  of  a  separate  offense  in  attending 
each  of  the  three  persons,  and  was  only  liable  to  one  penalty. 


REGARDING  SCHOOLS  OF  MEDICINE,  CHEMISTRY,  PHARMACY 

Louisville  College  of  Pharmacy  v.  City  of  Louisville,  26  Ky.  Law  Rep.  825;  82 

8.  W.  610 
1904 
The  Court  of  Appeals  of  Kentucky  says  that  if  the  teaching  of  law,  medicine, 
chemistry  and  pharmacy  in  universities  does  not  deprive  them  of  the  character  of 
"institutions  of  education,"  it  seems  to  the  court  that  an  institution  which  con- 
fines its  instructions  to  one  of  them  is  no  less  an  institution  of  education.     The 


338 

question  in  this  case  before  the  court  was  whether  the  college  .of  pharmacy  men- 
tioned was  an  "institution  of  education"  exempted  from  taxation  under  the  state 
constitution.  The  court  says  that  it  can  conceive  of  no  more  useful  and  import- 
ant branch  of  knowledge  than  that  of  pharmacy.  That  knowledge  is  necessary  to 
protect  the  lives  and  health  of  the  citizens  of  the  commonwealth.  So  important  is 
this  branch  that  the  general  assembly  has  taken  the  matter  in  hand  and  has 
prohibited  any  one  from  compounding  medicine  unless  he  has  been  graduated  from 
some  institution  of  education  where  pharmacy  is  taught.  In  this  case  public- 
spirited  persons  had  associated  themselves  together  and  organized  an  institution 
not  for  gain  or  profit  but  that  persons  might  be  educated  in  pharmacy  so  lhat  the 
drug  business  might  be  conducted  according  to  law,  and  the  public  protected  from 
the  uneducated  and  ignorant  pharmacists.  It  is  a  home  institution,  infantile  in 
the  matter  of  age,  and  merits  the  protection  given  by  the  constitution.  Conse- 
quently the  court  is  of  the  opinion  that  it  is  exempt  from  taxation. 


PRACTICE  OF  MEDICINE  PEIOR  TO  1864  OR  TO  1884  DOES  NOT  ENTITLE 

TO  CERTIFICATE 

Webster  v.  State  Board  of  Health,  130  Ky.  191;  113  8.  W.  Jt15 

1908 

The  Court  of  Appeals  says  that  this  case  was  instituted  for  the  purpose  of 
obtaining  a  writ  of  mandamus  requiring  the  board  to  issue  to  the  plaintiff  a  cer- 
tificate authorizing  him  to  practice  medicine  in  that  state.  The  principal  allega- 
tion in  the  petition  on  which  the  right  to  the  certificate  was  based  was  that  for 
several  years  prior  to  Feb.  23,  1864,  he  was  reputably  and  honorably  engaged  in 
the  practice  of  medicine  in  the  State  of  Kentucky. 

The  plaintiff  at  the  time  he  filed  his  petition  was  evidently  under  the  impres- 
sion that  Section  2613  of  the  Kentucky  Statutes  of  1903  was  still  in  force,  and 
overlooked  the  fact  that  the  act  of  1893,  relative  to  empiricism,  which  forms  a 
part  of  Chapter  85  of  the  Kentucky  Statutes  of  1903,  has  been  repealed  by  an 
act  on  the  same  subject,  which  was  approved  March  18,  1904,  and  is  found  in 
Acts  of  1904,  Chapter  34. 

By  Acts  of  1904,  Chapter  34,  no  person  is  permitted  to  practice  medicine  in 
Kentucky  unless  he  shall  first  stand  a  satisfactory  examination  by  the  board  in 
the  branches  of  medicine  as  taught  in  reputable  medical  colleges.  The  mere  fact 
that  the  plaintiff  practiced  his  profession  prior  to  1864  did  not  entitle  him  to  a 
certificate.  It  would  only  entitle  him  to  an  examination,  and  not  to  a  certificate, 
unless  his  examination  showed  that  he  was  qualified  in  the  opinion  of  the  board 
to  practice  his  profession. 

Moreover,  the  petition  alleged  simply  that  the  plaintiff  had  for  several  years 
prior  to  1864  practiced  medicine  in  Kentucky,  but  it  did  not  allege  that  he  had 
continuously  practiced  medicine  since  that  time.  Over  forty  years  have  passed 
since  1864,  and  it  was  not  alleged  that  during  any  of  that  time  the  plaintiff  had 
practiced  his  profession.  If  we  take  the  mere  letter  of  the  statute,  the  allegation 
would  seemingly  be  sufficient;  but  the  legislature  did  not  mean  that  any  person 
who  was  practicing  the  profession  of  medicine  prior  to  1864,  as  in  the  act  of 
1893,  or  prior  to  1884,  as  in  the  present  statute,  should  be  entitled  to  a  certificate 
if  he  had  not  been  continuously  practicing  since  that  time. 

The  object  of  the  statute  is  to  elevate  the  practice  of  medicine,  and  to  raise  a 
high  standard  of  proficiency  which  the  applicant  must  fully  measure  up  to  in 
order  to  secure  a  certificate  authorizing  him  to  practice  his  profession.  One  who 
had  simply  practiced  medicine  prior  to  1864,  but  had  not  practiced  it  since,  or 
prior  to  1884,  but  had  not  practiced  it  since,  would  be  in  no  wise  qualified  to 
practice  medicine  in  1907. 

Construing  the  act,  then,  according  to  its  spirit  rather  than  its  letter,  in  order 
to  authorize  the  plaintiff  to  stand  an  examination  and  receive  a  certificate  under 
the  present  law,  he  must  either  receive  a  diploma  from  a  reputable  medical  col- 
lege legally  chartered  under  the  laws  of  Kentucky  or  of  some  other  «tate  in  this 
Union,  or,  in  the  absence  of  a  diploma,  furnish  satisfactory  evidence  that  he  was 


33(J 

reputably  and  honorably  engaged  in  the  practice  of  medicine  in  Kentucky  con- 
tinuously from  Feb.  23,  1884,  until  his  application  was  made. 

The  statute  under  consideration  is  a  wise  and  beneficent  exercise  of  th3  police 
power  of  the  commonwealth,  enacted  for  the  purpose  of  protecting  the  people  of 
the  state  from  imposition  by  empirics  and  quacks.  It  does  not  seek  to  prevent 
any  honorable  man  or  woman  from  practicing  the  profession  of  medicine.  It  only 
requires  that  they  will  show,  by  a  satisfactory  examination  before  the  State 
Board  of  Health,  that  they  are  qualified. 

There  was  no  suggestion  in  the  plaintiff's  petition  that  the  board  was  acting 
arbitrarily,  or  that  it  unlawfully  sought  to  prevent  him  from  obtaining  a  certifi- 
cate; and  the  court  is  not  entitled,  in  the  absence  of  such  an  allegation,  to 
indulge  in  any  presumption  against  its  fairness.  It  is  the  high  duty  of  the  board 
to  protect  the  health  and  safety  of  the  public  by  requiring  every  applicant  for  a 
certificate  to  practice  medicine  to  first  show  his  qualifications. 

It  is  not  necessary  to  demonstrate  the  constitutionality  of  the  act.  Such 
legislation  has  been  uniformly  upheld  by  this  court  and  other  courts  throughout 
the  land. 


CONSTRUCTION   OF   MEDICAL   BOARDS— VALIDITY 

Allopathic   State  Board   of   Medical  Examiners   v.   Fowler,   50   La.   Ann.  1358; 

24   So.    809 
1898 

Action  by  the  State  Board  of  Medical  Examiners  against  Augustus  C.  Fowler. 
Judgment  for  plaintiff.     Defendant  appeals.     Affirmed. 

Plaintiff  obtained  from  the  district  court  an  injunction  forbidding  defendant 
from  further  practicing  medicine  in  any  of  its  departments  in  this  state  until  he 
shall  have  first  obtained  the  certificate  provided  for  under  the  provisions  of  Act 
No.  49  of  the  general  assembly  of  the  state  of  Louisiana  of  1894.  Defendant 
moved  to  dissolve  the  injunction.  He  also  excepted  to  plaintiff's  demand  on  the 
grounds:  First,  that  they  were  without  authority  or  capacity  to  institute  the 
suit;  second,  that  the  allegations  of  the  petition  were  too  vague  and  indefinite 
for  him  to  answer;  third,  that  the  allegations  of  the  petition  disclosed  no  cause 
of  action;  fourth,  that  Acts  No.  49  of  1894  and  N.  13  of  1896  are  in  violation  of 
the  constitution.  The  motion  to  dissolve  and  the  exceptions  filed  were  over- 
ruled. Defendant  denied  that  he  had  violated  the  provisions  of  the  Act  of  1894. 
He  denied  that  any  of  the  provisions  of  the  acts  alleged  were  applicable  to  him. 
In  the  event  that  said  acts  be  held  as  a  prohibition  to  the  practice  of  medicine  in 
any  branch  or  school  of  medicine  other  than  that  of  the  allopathic  or  homeo- 
pathic, without  a  diploma  from  an  allopathic  or  homeopathic  institution,  or 
without  previous  examination  by  the  plaintiffs'  medical  board  of  examiners,  or 
if  it  should  be  held  that  the  medical  board  of  examiners  were  authorized  to 
determine  upon  the  qualification  of  practitioners  of  other  schools  of  medicine 
he  averred  that  such  construction  discriminates  between  persons  engaged  in  the 
profession  of  medicine  and  would  be  depriving  him  of  his  constitutional  rights 
guaranteed  him  by  the  constitutions  of  this  state  and  of  the  United  States,  and 
is  an  unjust  and  illegal  discrimination,  is  class  legislation,  and  specially 
violative  of  the  bill  of  rights  of  the  state  constitution  and  of  section  2  of  article 
4  of  the  constitution  of  the  United  States,  as  well  as  of  the  fourteenth  amend- 
ment of  the  constitution;  that  it  deprives  him  of  his  property  and  liberty  with- 
out due  process  of  law;  and  that  said  acts  were  ultra  vires.  The  district  court 
rendered  judgment  in  favor  of  the  plaintiffs  making  the  injunction  perpetual, 
and  decreeing  that  defendant  be  enjoined  from  practicing  medicine  until  he 
should  have  received  a  certificate.  It  further  condemned  defendant  to  pay  a  fine 
of  $100  and  costs. 

The  court  held  that  the  constitutionality  of  a  law  would  not  be  considered 
where  an  issue  to  that  effect  has  not  been  raised  in  the  case  below. 

Appellant's  contention  that  Act  No.  49  of  1894  is  violative  of  the  constitution, 
in  that  it  embraces  more  than  one  object,  and  that  not  expressed  in  its  title,  the 
court  holds  to  be  without  merit. 


340 

The  appellant  maintains  that  every  citizen  has  the  constitutional  right  to 
obtain  a  livelihood;  that  the  legislature  is  without  power  to  cut  any  one  off  from 
doing  so  by  statute;  that  the  prescribing  for  and  alleviation  of  the  sufferings  of 
the  sick  is  a  praiseworthy  and  lawful  occupation,  which  the  general  assembly 
cannot  prohibit  a  person  from  pursuing,  especially  under  the  guise  of  mere 
regulation;  that  the  eclectic  school  of  medicine  is  as  much  entitled  to  legal 
recognition  as  are  the  allopathic  and  homeopathic  schools;  that  the  legislature 
has  no  legal  right  to  ignore  it,  or  to  discriminate  against  it  in  favor  of  the  other 
schools;  that  it  has  no  right  to  force  a  person  who  is  proficient  and  skilled  as  a 
practitioner  in  the  eclectic  school  to  have  his  qualifications  examined  into  and 
passed  upon  by  examining  boards  composed  entirely  of  allopathic  and  homeo- 
pathic physicians;  that  when  a  person's  qualifications  as  a  physician  have  been 
tested  by  the  laws  of  another  state,  and  he  has  been  pronounced  qualified,  and 
admitted  by  the  constituted  authorities  thereof  to  practice  medicine  in  that  state 
as  holding  a  diploma  from  a  reputable  medical  institution,  he  has  acquired  a 
vested  right  to  practice,  which  follows  and  protects  him  in  the  exercise  of  his 
profession  in  the  other  states  of  the  Union;  that  if  a  person  with  such  a  diploma, 
and  so  recognized  as  qualified,  removes  to  another  state,  and  there  practices 
medicine  for  some  time  as  a  physician,  his  right  to  further  do  so  cannot  be  taken 
away  from  him  by  a  statute  subsequently  passed,  as  it  would  deprive  him  of  his 
property  or  right  to  make  a  lawful  living  without  due  process  of  law;  that  the 
legislature  was  without  power  to  stop  him  in  his  practice,  and  make  further  con- 
tinuance dependent  upon  his  obtaining  and  exhibiting  a  certificate  of  qualifica- 
tion from  a  medical  board  of  examiners;  that  the  legislature  was  without  power 
to  constitute  the  pursuing  of  a  worthy  and  praiseworthy  calling  a  misdemeanor. 
The  court  says  there  can  be  no  question  of  the  right  of  every  citizen  to  earn  a 
living.  Any  statute  attempting  in  general  terms  to  prohibit  a  person  from  doing 
so  would  be  utterly  null  and  void.  There  is  a  very  great  difference,  however, 
between  so  radical  and  sweeping  a  prohibition  and  a  prohibition  extending  either 
absolutely  or  conditionally  to  certain  specified  pursuits  which  the  legislative 
branch  of  the  government,  as  guardians  of  the  public  good  and  general  welfare, 
should  declare  dangerous  to  the  community,  and  necessary  for  that  reason  to 
be  either  entirely  suppressed  or  exercised  only  under  certain  circumstances,  con- 
ditions, and  limitations.  Whenever  the  pursuit  of  any  particular  occupation  or 
profession  requires  for  the  protection  of  the  lives  or  health  of  the  general  public, 
skill,  integrity,  knowledge,  or  other  personal  attributes  or  characteristics  in  the 
persons  pursuing  it,  the  general  assembly  has  the  power  and  the  authority  to 
have  recourse  to  proper  measures  to  insure  that  none  but  persons  possessing 
these  qualifications  should  pursue  the  calling.  This  right  is  constantly  put  in 
force  by  the  general  as  well  as  the  state  governments.  Masters  of  boats,  engi- 
neers, mates,  pilots,  attorneys  at  law,  and  others  are  required  as  conditions 
precedent  to  pursuing  their  respective  business  or  profession  to  have  their  qualifi- 
cations tested.  The  medical  profession,  upon  whose  skill  is  so  much  dependent 
the  lives  and  health  of  others,  is  and  should  be,  as  much  subject,  if  not  more,  to 
legislative  control  in  this  matter,  as  are  the  occupations  above  mentioned.  There 
is  no  more  natural,  absolute  right  in  a  person  to  practice  medicine  or  surgery 
than  there  is  to  practice  law.  What  is  claimed  to  be  a  natural  or  absolute  right 
is  nothing  more  than  a  privilege  or  a  right  upon  conditions.  The  legislature  of 
this  state  has  not  attempted  to  suppress  or  prohibit  the  practice  of  medicine  or 
surgery,  nor  to  prohibit  any  particular  person  from  practicing  as  physician  or 
surgeon.  The  field  is  open  to  every  one  possessing  the  necessary  qualifications 
for  that  purpose;  these  qualifications  to  be  passed  upon  by  public  agencies  pro- 
vided by  the  legislature.  The  general  assembly  having  the  undoubted  right  to 
attach  as  a  condition  precedent  to  the  privilege  or  right  of  any  one  to  practice 
medicine  in  this  state  that  he  should  be  subjected,  before  doing  so,  to  a  prior 
examination  as  to  his  qualifications,  and  found  and  declared  worthy  and 
qualified,  it  has,  as  a  consequence,  the  right  to  select  the  particular  agencies  to 
which  should  be  delegated  the  right  and  duty  of  testing  those  qualifications.  It 
cannot  resolve  itself  into  an  examining  board,  and  must,  of  necessity,  act  through 
delegated  authority.  Courts  cannot  control  the  selection  of  these  agencies  by  the 
general  assembly.  The  legislature  has  not  dealt  with  the  eclectic  school  of  med- 
icine, and  discriminated  against  it;  it  has  simply  selected  as  examiners,  as  it  had 


341 

the  constitutional  right  to  do,  boards  of  examiners  composed  of  physicians  recom- 
mended for  appointment  by  two  certain  named  medical  societies,  and  appointed 
by  the  governor  on  such  recommendation.  It  has  required  that  a  person,  before 
practicing  medicine  in  the  state,  should  present  to  the  boards  mentioned  a  diploma 
from  a  medical  college  in  good  standing,  but  it  has  not  attempted  to  declare  and 
fix  what  constituted  a  medical  college,  nor  what  particular  colleges  nor  "lasses  of 
colleges  were  to  be  considered  as  "medical  colleges  in  good  standing."  There  must 
of  necessity,  be  some  tribunal  to  which  should  be  left  the  decision  of  those  ques- 
tions primarily,  at  least.  The  fact  that  in  some  particular  instance  a  board 
should  have  improperly  rejected  an  application  made  it  for  the  issuing  of  a  certifi- 
cate to  practice,  might  possibly  give  rise,  in  case  of  abuse,  to  a  right  of  action  for 
correction,  but  the  possibility  of  such  misconduct  would  certainly  not  go  to  the 
extent  of  rendering  unconstitutional  the  law  under  which  the  board  was  created. 
The  court  knows  of  no  constitutional  right  given  to  particular  persons,  who. 
entertaining  peculiar  theories  of  medicine,  group  themselves  together,  and  call 
themselves  a  special  school  of  medicine  under  a  selected  name,  to  be  recognized  as 
and  dealt  with  as  such.  An  indefinite  number'of  schools  of  medicine  might  claim 
recognition,  with  no  fixed  ascertained  standard  to  pass  upon  their  pretensions. 
Defendant's  claim  that  recognition  of  his  qualifications  by  the  constituted  authori- 
ties of  another  state  under  a  decision  by  them  that  the  medical  college  whose 
diploma  he  presented  was  a  medical  college  in  good  standing,  carries  with  it  a 
vested  right  in  him  to  practice  in  this  state,  has  no  legal  basis  on  which  to  rest. 
The  laws  of  other  states  in  respect  to  this  matter,  and  the  action  of  local  officers 
under  those  laws,  have  no  force  in  themselves  in  this  state.  Each  state  acts  inde- 
pendently of  the  others  in  matters  of  this  character.  Attorneys  practicing  law 
in  other  states  under  diplomas  from  institutions  recognized  there  as  having 
authority  to  grant  them  are  not  entitled,  simply  by  reason  of  that  fact,  to  prac- 
tice law  in  Louisiana.  There  is  no  reason  why  the  rule  should  be  different  as  to 
physicians. 

The  claim  made  that  defendant  was  protected  from  legislation  making  it 
obligatory  upon  him,  before  continuing  to  further  practice  his  profession  in 
Louisiana,  to  procure  a  certificate  from  the  medical  boards  organized  under  the 
act  of  1894,  because  he  had  been  for  several  years  in  active  practice,  without 
objection,  before  the  passage  of  the  law,  is  not  tenable.  The  fact  that  the  legis- 
lature had  not,  before  the  year  1894,  considered  the  practice  of  medicine  by  per- 
sons not  possessing  qualifications  fixed  by  a  legal  standard  a  matter  productive 
of  sufficient  mischief  or  injury  as  to  call  for  the  enactment  of  a  statute,  did  not 
prevent  it  from  passing  one  when,  in  its  opinion,  such  a  law  had  become  neces- 
sary. We  are  not  called  upon  to  say  what  defendant's  rights  would  have  been 
had  he,  before  the  present  law  was  passed,  been  expressly  authorized  to  practice, 
through  compliance  by  him  with  the  provisions  of  a  prior  existing  law  granting 
such  right.  That  question  does  not  arise  in  this  case,  for  it  is  not  claimed  that 
defendant  occupied  such  a  position  or  status  under  the  prior  law. 

Defendant's  contention  that  the  general  assembly  was  without  authority  to 
constitute  as  a  misdemeanor  the  pursuit  of  any  legitimate  and  proper  calling,  is 
answered  by  the  fact  that  it  is  not  the  pursuit  of  the  calling  which  is  prohibited 
and  made  criminal,  but  the  pursuit  of  the  same  by  unauthorized  persons.  The 
general  assembly,  having  the  authority  to  attach  prior  conditions  to  the  practice 
of  medicine,  was  vested  with  the  right  to  enforce  enactments  on  that  subject  by 
prescribing  penalties  for  violations  of  the  same  either  by  fine,  by  imprisonment, 
or  by  civil  remedies.  The  right  to  practice  medicine  being  conditioned  by  law 
upon  the  prior  obtaining  of  a  certificate  from  a  medical  board  under  Act  No.  49 
of  1894,  plaintiff's  were  clearly  authorized,  when  they  had  reason  to  believe  that 
defendant  was  violating  the  law  in  this  respect,  to  test  the  facts  of  the  case 
through  injunction.  Whether  or  not  the  injunction  taken  out  would  be  justified 
would  depend  upon  the  facts  as  disclosed  by  the  evidence.  The  right  to  practice 
being  dependent  upon  a  condition  precedent,  it  was  defendant's  duty,  when  his 
right  was  called  in  question,  to  show  that  he  was  acting  under  legal  authority. 

Coming  to  the  merits  of  the  case  the  issue  is  a  very  limited  one.  The  court  is 
not  called  on  to  say  whether  the  college  whose  diploma  defendant  holds  is  "a 
medical  college  in  good  standing"  or  not,  nor  to  say  whether  defendant  has,  in 
point  of  fact,  the  qualifications  necessary  to  entitle  him  to  obtain  a  diploma  from 


342 

a  "medical  college  in  good  standing."  Those  questions  are  not  closed  by  the  judg- 
ment below,  and  they  will  remain  open  for  examination  and  decision  hereafter 
by  the  medical  boards  organized  under  Act  No.  49  of  1894.  The  question  is  simply 
whether  defendant,  prior  to  the  issuing  of  the  injunction  which  issued  herein,  was 
practicing  medicine  in  the  parish  of  Jefferson  before  obtaining  the  certificate 
required  by  section  2  of  Act  No.  49  of  1894,  and,  if  so,  whether  he  was  justified  in 
so  doing,  as  falling  under  any  of  the  exceptions  provided  for  in  the  act.  It  is 
conceded  that  defendant  was  so  practicing  medicine  without  a  certificate.  Inde- 
pendently of  this,  however,  the  evidence  and  the  line  of  defense  set  up  both 
establish  this  fact.  The  evidence  fails  to  show  defendant  to  be  protected  by  any 
of  the  exceptions  of  the  act.  Under  these  conditions,  the  law  attacked  being  con- 
stitutional, its  provisions  control  the  case,  and  the  judgment  must  be  affirmed. 
The  court  notes  in  the  minutes  of  the  medical  state  board,  offered  in  evidence 
herein,  an  entry  to  the  effect  that  "Dr.  Fowler,  from  Gretna,  had  diploma  from 
fraudulent  college,  and  was  denied  the  right  to  go  before  the  board."  In  respect 
to  this  matter  the  court  says  that  there  exists  no  authority  in  any  one  to  pre- 
vent the  defendant  from  going  before  the  board  by  a  prejudgment  that  the 
diploma  under  what  he  claims  to  be  entitled  to  practice  is  not  from  a  "medical 
college  in  good  standing,"  but  a  fraudulent  college.  It  is  the  duty  of  the  medical 
board  to  receive  and  pass  upon  all  applications  made  to  it  on  evidence  submitted 
to  them  in  each  case. 


LOUISIANA  MEDICAL  PRACTICE  ACT  NOT  UNCONSTITUTIONAL 

State  v.  Lee,  106  La.  1,00;  31  So.  llt 

1901 

The  title  of  Louisiana  Act  No.  49  of  1894  reads:  "An  act  to  regulate  the 
practice  of  medicine,  surgery  and  midwifery;  to  create  state  boards  of  medical 
examiners,  and  to  regulate  the  fees  and  emoluments  thereof;  to  prevent  the  prac- 
tice of  medicine,  surgery  and  midwifery  by  unauthorized  persons;  and  to  provide 
for  the  trial  and  punishment  of  violators  of  the  provisions  of  this  act  by  fine  or 
imprisonment,  or  both;  and  to  repeal  all  laws  or  parts  of  laws  in  conflict  or 
inconsistent  with  this  act."  Section  12  provides  "that  any  itinerant  vendor  of 
any  drug,  nostrum,  ointment  or  application  of  any  kind,  intended  for  the  treat- 
ment of  disease,  or  injury,  or  who  may  by  writing,  print,  or  other  method,  profess 
to  cure  or  treat  disease  or  deformity,  by  any  drug,  nostrum,  manipulation,  or 
other  expedient,  in  this  state,  shall,  if  found  guilty,  be  fined  in  any  sum,  not  less 
than  $25,  and  not  exceeding  $100,  for  each  offense,  to  be  recovered  in  an  action  of 
debt  before  any  court  of  competent  jurisdiction,  or  shall  be  imprisoned  for  a  term 
of  not  less  than  ten  days  or  more  than  thirty  days,  or  both  fined  and  imprisoned." 
The  supreme  court  holds  that  the  title  expresses  but  one  object,  and  that  section 
12  does  not  go  beyond  the  title,  by  denouncing  the  mere  selling  of  drugs  and 
nostrums,  etc.,  as  an  offense;  the  offense  there  denounced  consisting  of  the 
itinerant  vendor  professing  to  treat  and  cure  disease  and  deformity  by  the  use  of 
drugs,  nostrums,  etc.,  sold  by  him,  and  by  the  other  means  mentioned.  It  says 
that  it  can  hardly  be  denied  that,  if  the  general  purpose  of  the  act  is  to  protect 
the  public  from  unskilled  and  incompetent  practitioners,  provision  relating  to 
vendors  who  undertake  to  prescribe  and  "effect  cures  with  the  nostrums  which 
they  sell  are  quite  as  germane  to  the  purpose  as  the  provisions  which  relate  to 
persons  who,  without  having  had  their  qualifications  tested,  undertake  to  treat 
disease  by  the  use  of  compounds  sold  by  others.  It  does  not  think  that  the  sec- 
tion was  intended  to  apply  to  the  itinerant  vendor,  merely  in  his  capacity  of 
vendor,  but  that,  as  above  suggested,  the  lawmaker  was  undertaking  to  deal  with 
him,  for  the  purposes  of  the  act,  as  a  person  professing  to  treat  or  cure  disease  or 
deformity  by  the  use  of  drugs  and  nostrums  which  he  sells,  or  by  manipulation 
or  other  expedients.  Nor,  although  the  section  is  inartificially  drawn,  does  the 
court  consider  that  it  can  be  interpreted  as  defining  and  denouncing  two  offenses : 
the  one,  of  selling,  and  the  other,  of  professing  to  cure  with,  drugs  and  nostrums. 
It  ignores  the  disjunctive  "or"  after  the  word  "injury." 


343 

TESTIMONY  OF  UNREGISTERED  PHYSICIANS  NOT  EXCUSABLE 

State  Board  v.  Howard,  120  La.  31 1 ;  !,5  So.   260 

1908 

The  supreme  court  holds  that  when  a  witness  in  a  criminal  prosecution  is 
offered,  and,  over  the  objection  that  he  has  not  been  examined  and  has  not  regis- 
tered as  required  by  Act  No.  49  of  1894,  is  permitted  to  testify,  as  an  expert 
physician  or  surgeon,  it  is  no  answer  to  the  objection  that  the  testimony  i»» 
incompetent  to  say  that  the  facts  testified  to  might  have  been  established  by  com- 
petent testimony,  or  that  the  testimony  as  given  "was  not  strictly  that  of  a  med- 
ical expert."  The  act  in  question  provides  that  practitioners  who  have  not  been 
examined  and  passed  by  the  state  board  of  medical  examiners  and  have  not  other- 
wise complied  with  its  provisions  "shall  not  ...  be  allowed  to  testify  as 
medical  or  surgical  experts  in  any  court  of  this  state." 


NO  RECOVERY  FOR  SERVICES  BY  UNLICENSED  PERSON 

Bibber  v.  Simpson,  59  Me.  1S1 

1871 

It  appeared  from  the  plaintiff's  testimony  that  she  professed  to  be  a  clairvoy- 
ant; that  when  asked  to  examine  the  patient  she  saw  the  disease,  and  felt  as  the 
patient  did;  that  sittings  or  seances  were  of  different  durations;  that  she  did  not 
pretend  to  understand  medicine  or  anatomy;  that  she  was  requested  by  the 
patient  to  visit  him  and  render  him  professional  services,  and  did  so;  that  she 
helped  him,  but  he  died  from  taking  cold;  acquainted  him  with  the  prices,  and 
he  agreed  to  pay  them,  but  never  did.  Therefore  this  action,  on  account,  was 
brought  against  the  administrators  of  his  estate.  The  result  was  a  nonsuit, 
which  is  confirmed  by  the  Supreme  Judicial  Court  of  Maine. 

The  services  rendered,  the  court  says,  were  medical  in  their  character.  True, 
the  plaintiff  did  not  call  herself  a  physician,  but  she  visited  her  sick  patients, 
examined  their  condition,  determined  the  nature  of  the  disease,  and  prescribed 
the  remedies  deemed  by  her  most  appropriate.  Whether  the  plaintiff  called  her- 
self a  medical  clairvoyant,  or  a  clairvoyant  physician,  or  a  clear-seeing  physician, 
mattered  little;  assuredly,  such  services  as  she  claimed  to  have  rendered,  pur- 
ported to  be  and  were  to  be  deemed  medical,  and  were  within  the  clear  and 
obvious  meaning  of  section  3  of  chapter  13  of  the  Revised  Statutes  of  1871, 
which  provides  that  "no  person,  except  a  physician  or  surgeon,  who  commenced 
prior  to  Feb.  16,  1831,  or  has  received  a  medical  degree  at  a  public  medical  insti- 
tution in  the  United  States,  or  a  license  from  the  Maine  Medical  Association, 
shall  recover  any  compensation  for  medical  or  surgical  services,  unless  previous 
to  such  services  he  has  obtained  a  certificate  of  good  moral  character  from  the 
municipal  officers  of  the  town  where  he  then  resided."  The  plaintiff  did  not 
bring  herself  within  the  provisions  of  this  section,  and  could  not  maintain  this 
action,  on  account  for  services. 


MEDICAL  PRACTICE  ACTS  ARE   POLICE   REGULATIONS 

State  v.  Bohemier,  92  Me.  257;  52  A.  643 

1902 

Joseph  E.  N.  Bohemier  was  convicted  for  practicing  medicine  without  regis- 
tration.    Judgment  for  the  state  sustained. 

The  defendant  was  indicted  for  practicing  medicine  and  surgery  for  hire 
without  being  registered  as  required  by  chapter  170  of  the  Public  Laws  of  1895. 
He  formally  admits  of  record  that  he  did  so  practice  without  being  thus  regis- 
tered. He  also  concedes,  or  at  least  does  not  question,  the  constitutional  power 
of  the  legislature  to  regulate  the  practice. 


344 

The  defendant  claims,  however,  that  this  particular  statute  is  inoperative 
against  him  personally  for  two  reasons. 

1.  Before  the  passage  of  the  statute  in  question  he  had  obtained  from  the 
Maine  Eclectic  Medical  Society,  a  corporation  chartered  by  the  state,  by  chapter 
597  of  the  Special  Laws  of  1868,  a  license  to  practice  medicine  and  surgery.  His 
argument  is,  that  by  incorporating  the  Maine  Eclectic  Medical  Society  with 
"such  powers  and  privileges  as  pertain  to  other  like  corporations,"  the  state  con- 
tracted with  the  society  and  its  regular  licensees  to  permit  them  to  practice 
medicine  and  surgery  in  this  state  without  being  subject  to  any  additional  rules 
or  limitations  not  imposed  by  the  society  itself;  and  that  Acts  1895,  c.  170, 
impairs  the  obligation  of  this  contract. 

The  court  cannot  find  in  the  act  incorporating  the  Eclectic  Society,  any 
words  importing  a  contract  with  the  society  or  its  members  that  any  of  its 
members  or  licensees  shall  be  exempt  from  such  rules  as  the  legislature  might 
find  necessary  to  impose  for  the  better  protection  of  the  health  of  the  people. 
There  are  no  such  words  in  any  charter  of  any  medical  society  nor  any  stipula- 
tion that  its  members  may  practice  medicine  and  surgery  unrestrained  by  the 
police  power  of  the  legislature. 

But,  if  there  were  any  such  stipulation  in  the  charter,  it  was  revocable  at 
the  pleasure  of  the  legislature.  The  statute  first  enacted  in  1831,  and  declaring 
that  "acts  of  incorporation  may  be  amended,  altered  or  repealed  by  the  legis- 
lature as  if  express  stipulation  were  made  in  them,  unless  they  contain  an 
express  limitation,"  was  in  existence  when  the  Maine  Eclectic  Medical  Society 
was  incorporated  in  1868,  and  that  act  of  incorporation  contains  no  express 
limitation.  The  legislature,  therefore,  reserved  full  power  to  revoke  any  privilege 
therein  granted.  Hence,  if  Acts  1895,  c.  170,  did  rescind  any  agreements  made  in 
the  act  of  incorporation  of  the  society,  it  does  not  impair  the  obligation  of 
any  contract. 

2.  In  section  10,  c.  170,  of  the  Acts  of  1895,  it  is  provided  that  the  act  shall 
not  apply  "to  any  physician  or  surgeon  who  is  called  from  another  state  to  treat 
a  particular  case,  and  who  does  not  otherwise  practice  in  this  state."  The 
defendant  contends  that  this  is  a  discrimination  against  residents  of  this  state 
in  favor  of  those  of  other  states,  which  is  forbidden  by  the  fourteenth  amend- 
ment to  the  constitution  of  the  United  States,  and  which  therefore  destroys  the 
whole  act.  In  support  of  this  contention,  he  cites  several  cases.  All,  however, 
arose  out  of  alleged  discriminations  in  matters  of  business,  trade,  or  manufac- 
tures, and  outside  of  the  police  power  of  a  state.  They  were  also  cases  in  which 
the  state  had  attempted  to  put  special  business  burdens  on  citizens  of  other 
states  which  it  did  not  impose  on  its  own  citizens. 

The  fourteenth  amendment  does  prohibit  arbitrary  discrimination  between 
persons,  or  fixed  classes  of  persons,  such  as  that  based  on  color  or  race  or 
nationality  or  state  citizenship.  It  does  not  prohibit  reasonable  determination 
based  on  the  requirements  of  the  public  health  or  morals.  In  this  legislation 
(Act  1895),  there  is  no  attempt  at  oppression  of  any  fixed  class  of  people,  nor  at 
denying  equal  rights  to  any  fixed  class.  It  is  purely  police  legislation,  designed 
solely  for  the  promotion  of  the  health  of  all  the  people  within  the  state.  To 
effectuate  this  purpose,  it  requires  all  persons  practicing  or  proposing  to  practice 
"medicine  or  surgery  within  this  state  for  gain  or  hire  [i.  e.,  as  a  business]  to 
furnish  the  statutory  evidence  of  their  qualifications."  All  persons  within  this 
class  have  the  same  rights  and  duties,  without  any  discrimination  between  them. 
The  defendant  admits  he  is  within  this  class,  and  he  does  not  show  any  dis- 
crimination against  him  in  favor  of  any  other  person  in  the  same  class. 

The  statute,  however,  still  in  the  interest  of  the  health  of  the  people,  allows 
a  physician  or  surgeon  to  be  called  from  another  state  to  treat  a  particular  case 
without  first  applying  for  registration  and  certificate  under  the  statute,  pro- 
vided he  does  not  otherwise  practice  in  this  state.  Here  is  another  and  distinct 
category  from  that  above  named.  The  defendant  is  not  within  this  class  because 
he  is  otherwise  practicing  in  this  state.  The  distinction  made  by  the  legislation 
between  the  two  classes  is  certainly  not  arbitrary.  It  is  one  clearly  required  by 
circumstances  and  by  the  purpose  of  the  act,  viz.,  the  health  of  the  people.  It 
does  not  break  against  the  fourteenth  amendment  nor  against  any  other  constitu- 
tional provision  to  which  our  attention  has  been  called. 


345 

DENTAL  LAW  SUSTAINED 

State  v.  Knowlea,  90  Md.  6^6 j   ',■',  Ml.  8";   ',<.)  L.  /.'.  .1.  695 

1900 

Section  5  of  Chapter  378  Maryland  acts  of  1896,  reads:  "Any  person  twenty- 
one  years  of  age,  who  has  graduated  at,  and  holds  a  diploma  from,  a  university 
or  college  authorized  to  grant  diplomas  in  dental  surgery  by  the  laws  of  any  one 
of  the  United  States,  and  who  is  desirous  of  practicing  dentistry  in  this  state, 
may  be  examined  by  said  board  (state  dental  board  of  examiners)  with  refer- 
ence to  qualifications,  and  after  passing  an  examination  satisfactory  to  the  board, 
his  or  her  name,  residence  or  place  of  business,  shall  be  registered  in  a  book  kept 
for  that  purpose,  and  a  certificate  shall  be  issued  to  such  person.  Any  graduate 
of  a  regular  college  of  dentistry,  may,  at  the  discretion  of  the  examining  board, 
be  registered  without  being  subjected  to  an  examination."  This  was  attacked 
as  containing  the  vulnerable  points  in  the  state  dental  law,  rendering  it  invalid. 
It  was  argued  that  as  the  word  "may"  occurs  twice  in  the  section,  and  that  as 
there  could  be  no  question  that  in  the  latter  sentence  it  was  employed  in  the 
usual  and  natural  sense,  the  same  sense  must  necessarily  and  unalterably  be 
impressed  upon  its  employment  in  the  first  sentence.  Such  being  the  case,  the 
contention  was  that  the  board  might,  if  it  chose,  refuse  to  examine  one  holding  a 
diploma  from  a  college  or  university  authorized  to  grant  diplomas  in  dental  sur- 
gery, and  could  thus  arbitrarily  deny  the  right  to  practice  dentistry  in  that 
state,  to  any  one  holding  such  diploma,  however  skilled  in  his  profession,  or 
however  qualified  to  pass  an  examination.  But  the  Court  of  Appeals  of  Maryland 
says  that  the  law  does  not  permit  itself  to  be  frightened  out  of  its  propriety  by 
the  hobgoblin  of  inconsistency,  and  that  it  itself  has  no  hesitation  in  holding  that 
the  only  discretion  conferred  is  to  waive  an  examination  when  the  applicant  is  a 
graduate  of  a  regular  college  of  dentistry,  and  that  in  all  other  cases  covered  by 
the  act  examinations  -must  be  granted  when  application  is  made  in  accordance 
with  reasonable  rules  as  to  time  and  place.  In  other  words,  it  construes  the  first 
"may"  as  "shall"  or  "must,"  while  it  says  that  the  latter  "may"  is  required  to 
be  used  in  the  permissive  sense  because  it  is  expressly  coupled  with  "discretion." 
Furthermore,  it  thinks  the  act  does  mean  to  distinguish,  for  the  purpose  of 
examinations,  between  "a  college  or  university  authorized  to  grant  diplomas  in 
dental  surgery"  and  "a  regular  college  of  dentistry."  In  the  former,  it  says,  by 
way  of  justification,  dentistry  may  be  but  an  adjunct  to  the  course,  and  there  is 
no  assurance  of  thoroughness  of  instruction  and  practical  application,  as  must 
be  presumed  in  a  regular  dental  college,  where  the  whole  time  of  the  students 
and  instructors  is  given  to  the  theory  and  practice  of  dental  science.  The  prin- 
ciple underlying  this  discrimination  has  been  recognized  in  numerous  cases  where 
the  authority  to  determine  what  colleges  are  "reputable  and  in  good  standing" 
has  been  held  not  to  be  an  arbitrary  or  unreasonable  authority.  With  reference 
to  the  criticism  that  the  language  "may  be  examined  with  reference  to  qualifica- 
tions" was  so  vague  and  indeterminate  as  to  be  fatal  to  the  validity  of  the  law, 
the  court  answers  that  it  might  well  have  been  more  specific,  but  that  it  is 
impossible  to  suppose  that  it  refers  to  any  other  qualifications  than  those  appro- 
priate to  and  requisite  for  the  practice  of  dentistry.  And  so  the  court  holds  the 
law  constitutional,  stating,  too,  that  the  same  reasons  which  apply  to  the  profes- 
sion of  medicine  apply  with  equal  force  to  the  profession  of  dentistry,  which  is 
but  a  special  branch  of  the  medical  profession. 


VALIDITY    OF    EXEMPTIONS    IN   PKACTICE    ACTS 

Scholle  v.  State,  90  Md.  729;  1,6  Atl.  326 

1900 

The  Court  of  Appeals  gives  special  attention  to  the  contention  that  the 
exemptions  of  the  statutes  of  that  state  from  the  burden  of  obtaining  a  license 
to  practice  medicine  invalidate  all  of  the  state  legislation  regulating  the  practice 
of  medicine.  Those  to  whom  the  provisions  of  the  latter  do  not  apply,  by  reason 
of  these  exemptions,  are:      1,  commissioned  surgeons  of  the  United  States  army 


346 

and  navy  and  marine  hospital;  2,  physicians  and  surgeons  in  actual  consultation 
from  other  states;  and  3,  persons  temporarily  practicing  under  the  supervision 
of  an  actual  medical  preceptor.  The  argument  advanced  was  that  these  exemp- 
tions were  an  unjust  and  unreasonable  discrimination  between  persons  engaging 
in  the  practice  of  medicine,  and  infringed  right  of  equality  guaranteed  by  the 
fourteenth  amendment  of  the  Constitution  of  the  United  States.  In  answer,  the 
court  says  that,  if  the  conditions  surrounding  all  persons  who  desired  to  practice 
were  alike,  there  could  be  no  differences  made  as  to  the  terms  upon  which  a 
certificate  could  be  obtained.  But  if  there  are  differences  as  to  conditions  and 
situations,  by  which  it  becomes  reasonable  that  greater  precautions  are  required 
in  some  cases  than  in  others,  classes  may  be  formed  by  which  certificates  can  be 
granted  to  some  without  examination,  and  by  which  others  may  be  exempted 
altogether  from  the  burden  of  being  registered.  But  these  classes  must  be 
created  upon  considerations  only  that  are  promotive  of  the  public  interests.  If 
they  are  so  created,  they  do  not  constitute  an  unlawful  discrimination,  and  do 
not  impair  the  "equal  right  which  all  can  claim  in  the  enforcement  of  the  laws." 
And  the  reasons  for  the  exemptions  in  question  the  court  thinks  are  apparent, 
and  are  entirely  of  a  public  character.  The  competency  of  the  first  class  is 
assured  by  the  exactions  required  of  them  before  they  become  commissioned  in 
the  service  of  the  United  States  as  physicians  or  surgeons.  So,  also,  physicians 
in  a  marine  hospital  are  selected  for  their  special  adaptation  and  skill  for  that 
work.  There  could  be  no  public  reason,  therefore,  that  these  medical  officers 
should  be  required,  for  the  protection  of  the  public,  to  be  registered.  Nor  can 
any  reason  having  in  view  the  public  protection  be  assigned  for  requiring  certifi- 
cates of  the  remaining  classes.  Neither  of  these  classes  can  be  said  to  be  prac- 
titioners within  the  state  of  Maryland.  The  physician  from  another  state,  "in 
actual  consultation,"  has  cooperating  with  him  a  registered  physician.  To 
require  him  to  license  as  for  general  practice  would  have  no  other  effect  than 
occasionally  to  deprive  the  patient  and  the  local  physician  of  the  benefit  of  the 
advice  of  some  of  the  most  eminent  and  skillful  gentlemen  of  the  profession. 
Moreover,  as  to  both  the  second  and  third  classes,  the  public  are  fully  protected 
from  the  incompetency  of  the  foreign  physician  and  the  student  by  the  presence 
and  supervision  and  restraints  of  the  certified  physicians  of  the  state.  Hence, 
the  court  concludes,  there  can  be  no  objection  to  these  exemptions  as  in  any 
respect  arbitrary  or  unreasonable,  or  as  in  any  manner  creating  any  unjust  dis- 
crimination. Neither  does  it  consider  it  a  valid  objection  that  one  of  the  bodies 
charged  with  the  duty  of  appointing  one  of  the  boards  of  medical  examiners  is 
the  Medical  and  Chirurgical  Faculty  of  the  State  of  Maryland — a  private  cor- 
poration. 

VALID    CLASSIFICATION    AND    EXCEPTIONS 

Watson  v.  State,  105  Md.  650;  66  Atl.  635 

1907 

The  Court  of  Appeals  holds  that  the  provision  of  the  medical  practice  act  of 
that  state  under  which  physicians  who  were  practicing  in  the  state  prior  to  Jan. 
1,  1898,  and  who  were  practicing  at  the  passage  of  that  act,  and  could  prove  by 
affidavit  that  within  one  year  from  that  date  they  had  treated  in  a  profes- 
sional capacity  at  least  twelve  persons,  should  be  exempt  from  the  requirement 
to  obtain  a  license,  is  not  an  unreasonable  and  arbitrary  discrimination  or  classi- 
fication forbidden  by  the  fourteenth  amendment  to  the  Constitution  of  the  United 
States.  It  says  that  the  object  sought  to  be  accomplished  by  this  law  is  to  pro- 
tect the  public  against  incompetent  and  ignorant  practitioners  of  medicine,  while 
at  the  same  time -protecting  actual  practitioners  of  medicine  against  arbitrary 
and  unreasonable  exclusion  from  the  practice  of  their  profession.  The  law  deals 
with  that  class  of  the  people  who  have  adopted  and  are  engaged  in  the  practice 
of  the  profession  of  medicine,  and  who  are  dependent  on  it  for  the  support  of 
themselves  and  their  families,  and  with  that  other  and  larger  class  to  whom 
competent  medical  practitioners  are  essential  for  the  preservation  of  their  health. 
These  two  classes  are  recognized  classes,  and  each  is  entitled  to  consideration  in 
framing  the  law. 


347 

In  Dent  vs.  West  Virginia,  129  U.  S.  21,  the  Supreme  Court  of  the  United 
States  upheld  a  law  which  exempted  from  examination  and  license  all  physicians 
who  had  practiced  medicine  in  that  state  continuously  for  ten  years.  The  period 
of  practice  required  under  the  Maryland  statute  under  consideration  at  the  time 
of  its  passage  was  a  little  more  than  four  years,  and  that  law  has  now  been  in 
force  five  years.  If  it  was  within  the  discretion  of  the  legislature  to  fix  a  ten- 
year  period,  it  was  equally  within  its  discretion  to  fix  a  four-year  period,  since 
the  supreme  court  has  said  the  legislature  has  a  wide  latitude  in  dealing  with 
such  classifications.  To  justify  the  striking  down  of  such  a  classification  it  must 
be  "obviously  arbitrary,"  and  must  be  shown  "not  to  rest  on  some  difference 
which  bears  a  reasonable  and  just  relation  to  the  act — the  thing — in  respect  to 
which  the  classification  is  proposed."  This  was  not  shown.  On  the  contrary, 
re-examination  of  the  authorities  and  a  careful  reading  of  the  briefs  convinces 
the  court  that  the  law  is  not  open  to  this  objection. 

Nor  does  the  court  think  the  law  unconstitutional  because  of  the  provision 
that  nothing  contained  in  the  subtitle  pertaining  to  practitioners  of  medicine 
should  be  construed  to  apply  to:  1,  Those  rendering  gratuitous  services;  2,  resi- 
dent or  assistant  resident  physicians  or  students  at  hospitals  in  the  discharge  of 
their  hospital  or  dispensary  duties,  or  in  the  office  of  physicians;  3,  physicians 
or  surgeons  from  another  state  or  territory,  when  in  actual  consultation  with  a 
legal  practitioner  in  this  state;  4,  to  commissioned  surgeons  of  the  United  States 
Army  or  Navy,  or  Marine-Hospital  Service;  5,  chiropodists;  6,  to  midwives;  7, 
to  masseurs  or  other  manual  manipulators,  who  use  no  other  means;  8,  to  physi- 
cians or  surgeons  residing  on  the  borders  of  a  neighboring  state,  and  duly  author- 
that  it  should  be  sufficient  to  say  that  they  all  come,  in  the  court's  judgment, 
ized  to  practice  under  its  laws,  and  whose  practice  extends  into  the  limits  of  the 
state,  but  not  so  as  to  permit  them  to  maintain  an  office  in  this  state.  It  thinks 
within  the  wisdom  and  discretion  of  the  legislature. 


UNLICENSED  PERSON  CAN  NOT  RECOVER  FOR  SERVICES 

Hewitt  v.  Charier,  16  Pick.  853 

1835 

This  was  an  action  for  services  in  attempting  to  cure  the  defendant's  son 
of  a  contraction  of  the  sinews  in  the  neck.  The  defense  set  was  that  the  plaintiff 
had  not  been  licensed  by  the  Massachusetts  Medical  Society,  nor  been  graduated 
as  a  doctor  of  medicine.  It  was  agreed,  that  the  plaintiff  professed  and  prac- 
tised bonesetting,  and  reduced  sprains,  swellings  and  contractions  of  the  sinews, 
by  friction  and  fomentation,  but  no  other  branch  of  the  curing  art.  The  ques- 
tions raised  were:  (1.)  Whether  the  plaintiff  was  within  the  operation  of  the 
provision  of  the  Massachusetts  statute  of  1818,  chapter  113,  section  1;  and  (2) 
Whether  such  provision  was  unconstitutional.  The  Supreme  Judicial  Court  of 
Massachusetts  holds  that  the  plaintiff  should  be  nonsuited. 

The  court  held  that  there  is  no  doubt,  that,  by  the  common  law,  physicians 
and  surgeons,  undertaking  to  practice  those  professions,  are  responsible,  not  only 
for  due  care  and  diligence,  but  for  that  degree  of  skill  and  capacity  which  ordi- 
narily belong  to  those  who  practice  them,  and  this  will  depend  much  upon  the 
state  of  science  and  the  means  of  education  at  any  particular  period.  Seare  v. 
Prentice,  8  East,  348  (English  case.)  They  are  placed  in  this  respect  upon  the 
same  footing  with  attorneys,  brokers,  carriers,  pilots,  and  persons  of  many  other 
professions  and  callings,  who  undertake  to  perform  services,  requiring  knowledge 
and  skill,  for  reward.  In  undertaking  to  perform  the  service,  there  is  an  implied 
undertaking,  that  the  party  has,  and  will  bring  to  the  performance  of  it,  this 
ordinary  and  competent  skill;  and  the  reward,  by  being  adapted  to  the  requisite 
skill,  is  a  compensation  for  such  skill,  and  renders  the  undertakings  of  the  par- 
ties equal  and  mutual. 

But  the  legislature,  from  a  due  regard  to  the  importance  of  the  lives  and 
health  of  the  citizens,  and  the  deep  interest  which  they  have  in  this  profession, 
and  wisely  acting  upon  the  maxim  drawn  from  the  profession  itself,  that  "nre- 


348 

vention  is  better  than  cure,"  not  content  with  holding  the  ignorant,  careless  and 
unskilful  responsible  in  damages,  have  provided  by  positive  enactment,  for 
giving  encouragement  to  those,  who  before  they  engage  in  the  practice  shall  give 
evidence  of  their  having  enjoyed  the  means  of  a  good  professional  education,  and 
faithfully  availed  themselves  of  them,  by  requiring  such  persons  to  obtain  the 
sanction  and  permission  of  those  who  have  the  best  means  of  judging  of  their 
qualifications,  the  members  of  the  Medical  Society,  or  the  customary  sanction  of 
a  degree  from  the  University,  known  to  have  a  medical  faculty  and  to  be  other- 
wise amply  provided  with  the  means  of  affording  a  good  professional  education. 
St.  1818,  c.  113,  §  1.  This  statute  provides,  that  no  person  practicing  physic  or 
surgery  shall  be  entitled  to  the  benefit  of  law  for  the  recovery  of  any  debt  or  fee 
for  his  professional  services,  unless  he  shall,  previously  to  rendering  such  ser- 
vices, have  been  licensed  by  the  Medical  Society,  or  been  graduated  a  doctor  in 
medicine  at  Harvard  University. 

The  first  question  for  the  court,  is  whether,  upon  the  facts  agreed,  the  plain- 
tiff can  be  held  to  be  engaged  in  the  practice  of  physic  or  surgery.  It  appears 
that  he  professes  and  practices  bonesetting  and  reducing  sprains,  swellings  and 
contractions  of  the  sinews,  by  friction  and  fomentation;  but  no  other  department 
of  the  curing  art.  By  bonesetting  is  understood  the  relief  afforded  as  well  in 
cases  of  dislocation,  as  in  those  of  fracture.  The  court  holds  that  this  brings 
him  within  the  meaning  of  the  statute,  as  one  who  practices  physic  or  surgery. 
It  is  not  necessary  for  one  to  profess  to  practice  generally,  either  as  a  physician 
or  surgeon,  to  bring  him  within  the  operation  of  this  statute,  but  that  it  extends 
to  any  one  engaging  in  practice  in  a  distinct  department  of  either  profession,  and 
that  the  plaintiff's  practice  forms  a  considerable  department  in  the  practice  of 
surgery. 

It  has,  however,  been  insisted,  that  this  statute  is  unconstitutional  and  void, 
as  being  contrary  to  the  sixth  article  of  the  Bill  of  Bights:  viz.,  "No  man  nor 
corporation  or  association  of  men,  have  any  other  title  to  obtain  advantages  or 
particular  and  exclusive  privileges,  distinct  from  those  of  the  community,  than 
what  arises  from  the  consideration  of  services  rendered  to  the  public;  and  this 
title  being  in  nature  neither  hereditary  nor  transmissible  to  children,  or  descend- 
ants, or  relations  by  blood,  the  idea  of  a  man  born  a  magistrate,  lawgiver  or 
judge,  is  absurd  and  unnatural." 

Taking  the  whole  article  together,  it  is  manifest,  that  it  was  especially 
pointed  to  the  prevention  of  hereditary  rank,  and  the  privileges  attributed  to 
birth.  But  applying  the  first  clause  in  the  article  according  to  its  literal  mean- 
ing in  considering  its  operation  upon  any  particular  enactment,  it  is  necessary  to 
consider  whether  it  was  the  intent,  or  one  of  the  leading  and  substantive 
purposes  of  the  legislature,  to  confer  an  exclusive  privilege  on  any  man  or  class 
of  men.  Many  legislative  acts  have  a  direct  effect  to  confer  on  persons  and  sec- 
tions of  country  very  important  advantages,  such  as  those  establishing  roads, 
bridges,  ports,  and  very  many  others,  which  have  an  immediate  effect  to  enhance 
the  value  of  real  estate,  to  encourage  particular  branches  of  trade,  and  in  various 
ways  to  confer  valuable  privileges.  But  when  this  is  indirect  and  incidental,  and 
not  one  of  the  purposes  of  the  act,  it  cannot  be  considered  as  a  violation  of  this 
article  of  the  Bill  of  Bights. 

The  leading  and  sole  purpose  of  this  act  was  to  guard  the  public  against 
ignorance,  negligence  and  carelessness  in  the  members  of  one  of  the  most  useful 
professions,  and  that  the  means  were  intended  to  be  adapted  to  that  object.  If 
the  power  of  licensing  were  given  to  the  Medical  Society,  exclusively,  there 
would  be  much  more  plausible  ground,  at  least,  to  maintain,  that  the  power  was 
conferred  on  a  body  who  would  have  a  temptation  to  abuse  it,  so  as  to  promote 
their  private  interests;  but  where  the  power  is  conferred  equally  on  the  Univer- 
sity charged  with  the  great  interests  both  of  general  and  professional  education, 
and  which  cannot  be  perceived  to  have  any  such  interest,  that  ground  of  argu- 
ment seems  to  be  wholly  removed;  and  it  seems  difficult  to  perceive  how  a  power 
which  it  is  important  to  the  community  should  be  placed  somewhere,  could  be 
placed  more  safely.     The  courts  are  all  of  the  opinion,  that  the  law  in  question 


349 

is  not  repugnant  to  the  article  of  the  Bill  of  Rights,  above  cited,  and  that  its 
validity  cannot  be  impeached  on  tbe  ground  that  it  is  a  violation  of  any  prin- 
ciple of  the  constitution.     Plaintiff  non-suit. 


TREATMENT  OF  EYES  NOT  DUTY  OF  MIDWIFE 

Higgins  v.  McCabe,  126  Mass.  18  J  SO  Am.  Rep.  G)'. 
1878 

It  was  alleged  that  the  defendant  held  herself  out  as  a  competent  and  skilful 
midwife;  that  the  mother  of  the  plaintiff  was  about  to  be  delivered  of  child,  and, 
at  the  defendant's  request,  employed  the  defendant  as  midwife;  that  thereafter 
the  mother  of  the  plaintiff  was  delivered  of  child,  being  the  plaintiff,  and  the 
defendant  acted  as  midwife;  that  the  defendant  neglected  to  take  proper  care  of 
the  plaintiff,  and  treated  her  so  negligently  and  carelessly  that  she  contracted  a 
disease  of  the  eyes,  and  became  totally  blind,  etc. 

The  Supreme  .Judicial  Court  of  Massachusetts,  in  overruling  exceptions  to  a 
verdict  ordered  for  the  defendant,  says,  among  other  things,  that  this  action  (in 
tort)  proceeded  upon  the  ground  that  the  defendant  failed  to  discharge  a  legal 
duty  which  she  owed  the  plaintiff,  resulting  in  the  injury  complained  of.  The 
question  was  whether  the  evidence  relied  on  by  the  plaintiff  would  justify  a  ver- 
dict in  favor  of  the  child;  and,  in  the  opinion  of  a  majority  of  the  court,  it 
would  not. 

It  appeared  that  the  defendant  was  originally  employed  only  as  a  midwife. 
The  parents  had  employed  her  twice  before  in  that  capacity.  There  was  no  com- 
petent evidence  that  the  treatment  of  diseases  of  the  eye  which  might  be  devel- 
oped in  the  child  was  embraced  in  the  duties  which  the  defendant  undertook  as 
midwife;  and  there  was  no  evidence  that  the  defendant  was  unskilful  or  negli- 
gent in  the  performance  of  any  of  the  duties  with  which  she  was  properly 
chargeable  in  that  capacity. 

The  services  of  the  defendant  in  respect  to  the  cure  of  this  disease  were 
wholly  gratuitous;  they  were  performed  as  acts  of  benevolence  only.  The  defend- 
ant was  a  midwife;  the  jury  would  not  be  justified  in  finding  that  she  claimed 
to  possess,  or  might  reasonably  be  expected  from  her  calling  to  have,  the  peculiar 
knowledge,  skill,  and  experience  of  an  expert  in  such  matters.  The  representa- 
tions of  the  defendant,  that  she  could  cure  the  child  with  simple  remedies  and 
washes,  that  she  had  cured  other  children  in  the  same  way,  who  were  similarly 
afflicted,  and  that  there  was  no  need  of  a  doctor,  were  but  the  expression  of  an 
opinion  as  to  the  efficacy  of  her  remedies,  and  did  not  imply  that  she  undertook 
to  use  that  higher  skill  of  the  medical  profession  which  is  required  in  the  treat- 
ment of  the  more  complicated  and  delicate  organs.  The  question  was  whether 
she  had  discharged  the  duty  which  she  assumed  with  that  skill  which  she  pro- 
fessed to  have,  and  with  that  diligence  which  might  reasonably  have  been 
expected  of  her.  Upon  that  question,  the  fact  that  the  service  was  rendered  with- 
out compensation  must  have  an  important,  if  not  decisive,  bearing. 

Under  the  rule  requiring  ordinary  care  as  applied  to  this  case,  the  court  sees 
no  evidence  of  neglect  in  any  degree.  A  physician  must  apply  the  skill  and 
learning  which  belong  to  his  profession;  but  a  person  who,  without  special 
qualifications,  volunteers  to  attend  the  sick,  can  at  most  be  only  required  to 
exercise  the  skill  and  diligence  usually  bestowed  by  persons  of  like  qualifications 
under  like  circumstances.  To  hold  otherwise  would  be  to  charge  responsibility  in 
damages  upon  all  who  make  mistakes  in  the  performance  of  kindly  offices  for 
the  sick. 

The  defendant  was  attentive  and  diligent  in  her  treatment  of  the  child,  and 
in  the  use  of  the  remedies  she  proposed.  There  was  evidence,  it  was  true,  from 
regular  physicians,  that,  if  other  and  more  powerful  remedies  had  been  seasonably 
applied,  they  would  probably  have  effected  a  cure;  but  these  were  remedies  known 
to  the  medical  profession,  of  which  the  defendant  neither  had  nor  professed  to 
have  knowledge.  It  was  not  a  case  where  the  defendant  assumd  to  act  as  a  regu- 
lar surgeon  or  a  regular  practitioner. 


350 

MIGHT  NOT  BE   ACTING  AS  A  PHYSICIAN 

Commonwealth  v.  St.  Pierre,  175  Mass.  48;  55  N.  E.  482 

1899 

This  case  was  a  prosecution  for  unlawfully  practicing  medicine.  The  gov- 
ernment had  introduced  in  evidence  the  testimony  of  a  number  of  persons  to  the 
effect  that  they  had  visited  the  defendant  at  various  times;  that  he  gave  to  them 
medicines,  and  advised  them  how  to  use  them;  that  at  these  times  they  had  con- 
versations with  him  about  the  nature  of  their  complaints;  that  he  afterward 
visited  some  of  them  at  their  houses,  and  treated  them  there,  and  that  they  paid 
him  money;  and  the  bottles  and  packages,  which  the  witnesses  testified  were 
given  to  them,  had  been  put  in  evidence.  The  defendant  offered  to  prove  that  on 
each  and  every  occasion,  at  the  time,  the  parties  were  told  by  him  that  he  was 
not  a  doctor,  and  that  he  did  not  charge  anything  for  his  services.  This  evidence 
was  excluded.  The  Supreme  Judicial  Court  of  Massachusetts  holds  that  such 
exclusion  constituted  reversible  error.  It  says  that  if  the  defendant  sold  the 
medicines,  receiving  payment  therefor,  and  gave  advice  gratuitously  as  to  the 
use  to  be  made  of  them,  he  was  not,  so  far  as  those  instances  were  concerned, 
holding  himself  out  as  a  physician.  His  declarations  accompanying  the  acts  and 
showing  the  character  of  them  were  admissible  as  part  of  the  res  gestce,  or  things 
done.  It  was  open  to  the  government  to  contend  that  in  these  instances  he  was 
really  acting  as  a  physician,  and  was  paid  as  such  for  his  services,  and  that  these 
statements  were  efforts  to  evade  the  statutory  provisions.  But  when  the  com- 
monwealth put  in  testimony  to  the  effect  that  he  had  given  directions  and  advice 
as  to  the  use  of  the  contents  of  the  packages  and  bottles  sold  by  him,  and  had 
been  paid  by  the  persons  to  whom  the  contents  were  sold,  it  was  the  right  of  the 
defendant  to  prove  that  in  each  instance  he  was  paid,  not  for  advice,  but  only 
for  the  drugs;  and  in  that  way  to  raise  the  question  whether,  so  far  as  these 
instances  were  concerned,  he  was  selling  the  drugs,  and  giving  information 
gratuitously  as  to  their  use,  and  therefore  not  thereby  holding  himself  out  as  a 
physician,  taking  payment  therefor,  and  was  seeking  by  such  declarations  to 
evade  the  effect  of  his  action.  This  question  was  for  the  jury,  under  all  the 
circumstances.  The  ruling,  in  a  prosecution  for  unlawfully  practicing  medicine, 
that,  if  the  defendant  held  himself  out  as  an  eye  specialist,  he  held  himself  out 
as  "one  who  devoted  himself  to  a  branch  of  the  healing  art  which  is  the  profes- 
sion of  the  physician  and  surgeon,"  and  that,  "if  the  defendant  held  himself  out 
as  an  eye  specialist,  he  held  himself  out  as  a  physician  and  surgeon,  within  the 
meaning  of  the  statute,"  the  Supreme  Judicial  Court  of  Massachusetts  holds  was 
correct.  It  further  holds  that  proof  that  the  defendant  acted  either  as  a  physi- 
cian or  surgeon  was  sufficient  to  support  the  complaint,  which  charged  him  with 
holding  himself  out  as  a  physician  and  surgeon.  There  is,  it  continues,  but  one 
offense,  and  that  may  be  committed  by  the  defendant's  holding  himself  out  as  a 
physician  or  a  surgeon.  If  the  complaint  charges  that  the  offense  is  committed 
by  the  defendant's  holding  himself  out  both  as  a  physician  and  surgeon,  the 
whole  offense  is  proved  if  he  is  shown  to  have  held  himself  out  as  either.  More- 
over, the  court  holds,  the  burden  is  on  the  defendant  to  show  that  he  is  a  regis- 
tered physician,  if  he  relies  on  such  justification.  This,  it  adds,  applies  in  cases 
where  the  absence  of  a  license  is  made  part  of  a  description  of  the  offense. 


SUFFICIENT  EVIDENCE  OF  ABORTIONAL  ADVERTISING 

Commonwealth  v.  Hartford,  193  Mass.  464;  79  N.  E.  784 

1907 

The  Supreme  Judicial  Court  overrules  exceptions  to  a  conviction  on  an 
indictment,  under  the  statute  of  that  state,  charging  the  defendant  with  know- 
ingly distributing  a  circular  or  advertisement  giving  notice  of  a  place  where 
illegal  operations  might  be  performed  on  pregnant  women.  It  says,  among  other 
things,  that,  while  the  acts  made  criminally  punishable  are  distinct  from  the 
crime  of  procuring  an  abortion,  evidence  describing  the  rooms  with  their  fur- 


351 

nishings,  the  envelopes  addressed  to  physicians  containing  similar  cards,  and  her 
statements  relating  to  the  origin  of  her  acquaintance  with  the  officer  to  whom 
she  had  given  the  card  described  in  the  indictment,  was  properly  admitted,  not 
only  as  being  descriptive  either  of  the  defendant's  place  of  business,  or  of  her 
employment,  but  also  as  indicative  of  her  guilty  knowledge  of  its  contents.  It  is 
true  that  mere  possession  of  this  card  was  not  a  crime,  for  the  offense  charged 
was  its  distribution  or  circulation  as  a  paper  conveying  information  where 
operations  were  performed  for  the  purpose  of  procuring  the  miscarriage  of  preg- 
nant women,  but  if  intentionally  handed  to  a  patient  who  was  seeking  such 
treatment  the  offense  would  have  been  complete,  and  this  equally  would  be  true 
if  the  receiver  was  inquiring  as  to  similar  aid  in  behalf  of  a  proposed  patient. 
The  weight  of  the  defendant's  argument,  therefore,  was  that  because  it  was  pro- 
cured by  false  representations  there  was  no  proof  either  of  distribution  or  of 
circulation.  Generally  solicitation  to  commit  a  crime  to  which  the  party  solicited 
yields  does  not  exonerate  the  wrongdoer,  or  exempt  him  from  prosecution,  and 
under  the  statute  it  is  the  circulation  or  distribution  with  guilty  knowledge 
which  is  made  unlawful,  although  patients  may  not  be  obtained.  The  intention 
with  which  it  is  put  out  is  the  controlling  element,  and  if  the  defendant  issued 
the  card  as  an  advertisement  containing  the  information  sought  this  would  be  a 
violation  of  the  statute.  If  from  a  desire  to  obtain  patronage  she  chose  to  rely 
on  the  officer's  statements  rather  than  to  require  any  corroboration  before  acting 
on  them  such  conduct  would  neither  lessen  her  criminal  responsibility,  nor  render 
his  testimony  incompetent  if  the  jury  were  satisfied  that  it  was  delivered  volun- 
tarily with  a  criminal  purpose,  which  was  clearly  and  accurately  explained  in 
the  instructions  given. 


PRACTICE  OF  MIDWIFERY  THE  PRACTICE  OF  MEDICINE 

Commomvealth  v.  Porn,  196  Mass.  826;  82  N.  E.  31 

1907 

The  Supreme  Judicial  Court  says  that  it  was  charged  that  the  defendant 
"did  practice  medicine"  and  "hold  herself  out  as  a  practitioner  of  medicine," 
contrary  to  Section  8  of  Chapter  76  of  the  Revised  Laws  of  Massachusetts.  The 
case  was  tried  on  an  agreed  statement  of  facts,  the  substance  of  which  was  that 
at  the  time  mentioned  in  the  complaint,  and  for  some  years  prior,  the  defendant 
held  herself  out  as  a  midwife  and  practiced  midwifery,  but  did  not  claim  to  be  a 
general  practitioner  of  medicine,  nor  was  she  lawfully  authorized  to  practice 
medicine  as  provided  by  Section  3  of  said  Chapter  76.  She  delivered  many  women 
in  childbirth  for  compensation  and  carried  with  her  to  her  patients  the  usual 
obstetrical  instruments,  which  she  used  rarely  on  occasions  of  emergency,  but 
never  if  a  physician  could  be  called  in  time..  She  used  six  printed  prescriptions 
or  formulas  in  treating  her  patients,  which  contained  directions  for  their  appli- 
cation, and  the  purposes  for  which  they  were  used,  as  follows:  "For  vaginal 
douche,"  "For  postpartum  hemorrhage,"  "To  prevent  purulent  ophthalmia  in  the 
newborn,"  "For  after  pains,"  "For  uterine  inertia,"  and  "For  painful  hemor- 
rhoids or  piles."  She  used  no  other  prescriptions  or  formulas.  She  was  a  trained 
nurse  of  experience,  and  was  a  graduate  of  the  "Chicago  Midwife  Institute," 
from  which  she  received  a  diploma  which  stated  that  she  had  received  theoretical 
and  practical  instruction  in  the  art  of  midwifery  for  a  period  of  six  months,  and 
was  declared  a  graduate  midwife. 

On  these  facts  the  trial  court  ruled  that  the  jury  would  be  authorized  to  find 
the  defendant  guilty,  and  the  defendant's  first  exception  related  to  this  ruling. 
When  the  facts  are  undisputed,  the  Supreme  Judicial  Court  goes  on  to  say,  it  is 
generally  a  question  of  law  whether  they  constitute  a  violation  of  the  statute. 
Both  medical  and  popular  lexicographers  define  midwife  as  a  female  obstetrician, 
and  midwifery  as  the  practice  of  obstetrics.  Section  7  of  said  Chapter  76  men- 
tions obstetrics  as  one  of  the  subjects  of  examination  for  the  purpose  of  testing 
an  applicant's  fitness  to  "practice  medicine."  This  goes  far  toward  showing  that 
obstetrics  is  a  branch  of  the  practice  of  medicine.  It  requires  no  discussion  to 
demonstrate  that,  when,  in  addition  to  ordinary  assistance  in  the  normal  cases 


352 

of  childbirth,  there  is  the  occasional  use  of  obstetrical  instruments,  and  a  habit 
of  prescribing  for  the  conditions  described  in  the  printed  formulas  which  the 
defendant  carried,  such  a  course  of  conduct  constitutes  a  practice  of  medicine  in 
one  of  its  branches.  Although  childbirth  is  not  a  disease,  but  a  normal  lunction 
of  women,  yet  the  practice  of  medicine  does  not  appertain  exclusively  to  disease, 
and  obstetrics  as  a  matter  of  common  knowledge  has  long  been  treated  as  a 
highly  important  branch  of  the  science  of  medicine.  In  view  of  all  the  agreed 
facts,  there  was  no  error  in  submitting  the  case  to  the  jury. 

The  defendant  also  offered  expert  evidence  to  prove  that  the  practice  of  the 
defendant,  as  shown  in  the  agreed  facts,  was  not  the  practice  of  medicine  in  any 
of  its  branches,  and  that  the  conduct  of  the  defendant  was  not  holding  herself 
out  as  a  practitioner  of  medicine.  This  offer  of  evidence  was  excluded  against 
the  objection  and  exception  of  the  defendant.  The  former  decision  of  this  case 
said  that  expert  medical  evidence  was  admissible  to  prove  "what  a  midwife  does 
or  is  expected  to  do  as  such,  so  that  the  court  may  see  whether  her  acts  or  any 
of  them  are  regarded  as  the  practice  of  medicine  in  any  of  its  branches. 
Whether  on  such  evidence  it  would  appear  that  the  ministrations  of  a 
midwife  are  those  of  a  physician  or  rather  of  an  attendant  nurse  and  helper 
would  ordinarily  be  a  question  of  fact,  or  if  the  facts  were  not  in  dispute  a 
question  of  law."  194  Mass. — At  the  present  trial  the  facts  were  agreed.  All  that 
the  defendant  sought  to  show  was  that  these  facts  in  the  opinion  of  experts  did 
not  constitute  the  practice  of  medicine.  But  as  the  facts  were  not  in  dispute, 
within  the  former  decision,  the  question  was  not  one  for  expert  evidence,  but  for 
the  court.  Moreover,  on  all  the  facts  shown  as  to  the  use  of  prescriptions  and 
the  pains  they  were  stated  to  alleviate  and  the  use  of  obstetrical  instruments,  as 
well  as  attendance  and  service  at  childbirth  by  the  defendant,  it  would  be  con- 
trary to  the  plain  intent  of  the  statute  and  flying  in  the  face  of  the  common  use 
of  words  to  permit  experts  to  testify  that  the  language  employed  in  the  statute 
did  not  comprehend  the  acts  confessedly  performed  by  the  defendant.  The  court 
is  far  from  saying  that  it  would  not  be  within  the  power  of  the  legislature  to 
separate  by  a  line  of  statutory  demarcation  the  work  of  the  midwife  from  that 
of  the  practitioner  in  medicine.  See  Midwives  Act,  1902,  2  Edw.  7,  c.  14,  and 
collection  of  statutes  in  1  Witthaus  &  Becker  Med.  Jurispr.  137  et  seq.  The 
statute  now  under  consideration  does  not  make  such  separation.  Whatevi-r  hard- 
ship there  might  be  on  the  defendant,  who  was  a  woman  of  good  character  and 
reputation  as  shown  by  the  agreed  facts,  came  from  the  scope  of  the  statute. 

The  defendant  contended  that  the  statute  as  thus  construed  is  unconstitu- 
tional. Its  validity  can  not  be  questioned  on  this  ground.  The  maintenance  of  a 
high  standard  of  professional  qualifications  for  physicians  is  of  vital  concern  to 
the  public  health,  and  reasonable  regulations  to  this  end  do  not  contravene  any 
provision  of  the  state  or  federal  Constitution. 


IN  WHAT  PRACTICE  OF  MEDICINE  MAY  CONSIST 

Commonwealth  v.  Jewelle,  199  Mass.  558;  85  N.  E.  858 

1908 

The  Supreme  Court  says  that  the  defendant  was  convicted  under  a  complaint 
charging  him  with  a  violation  of  Section  8  of  Chapter  76  of  the  revised  laws 
of  Massachusetts  by  practicing  medicine  in  that  commonwealth  without  being 
lawfully  authorized  to  do  so.  There  was  conflicting  evidence  at  the  trial  in 
regard  to  what  he  had  done.  To  quote  from  the  judge's  charge:  "The  common- 
wealth says  that  on  different  occasions  the  defendant  has  prescribed  medicines 
and  administered,  and  advertised  that  he  prescribed  as  a  part  of  his  treatment, 
what  he  called  'vitalizer,'  and  that  he  has  been  in  the  habit  of  giving  what  are 
called  electric  or  ray  baths,  and  that  on  one  or  more  occasions  in  the  giving  of 
what  was  called  the  stomach  wash,  another  substance  than  water  was  in  the 
tumbler,  which  was  taken  by  the  patient."  There  was  also  evidence  that  on  dif- 
ferent occasions  he  did  make  a  diagnosis  of  the  patients,  for  the  purpose  of  ascer- 
taining what  ailed  them  and  that  then  he  prescribed  for  them  treatment  which 


353 

was  afterward  administered  to  them.  The  defendant  did  not  admit  this.  In  his 
charge  the  judge  said:  "The  defendant  does  not  claim  that  he  has  any  knowledge 
of  drugs  or  of  disease  in  the  ordinary  sense  in  which  that  word  is  used.  I  under- 
stand him  to  testify  that  he  did  not  understand  about  diseases,  that  lie  did  not 
treat  disease;  but  that  he  treated  the  healthy  portions  of  the  body." 

The  defendant  asked  the  court  to  rule  that  "there  is  no  law  against  a  person 
being  a  mind  cure  healer,  or  a  massage  healer,  or  an  osteopathist;  he  can  practice 
his  healing  so  long  as  he  does  not  prescribe  or  deal  out  medicine."  The  defendant 
excepted  to  the  refusal  of  the  judge  to  give  in  terms  the  last  part  of  this  request. 
He  also  excepted  to  the  "rulings  and  refusals  to  rule."  The  defendant's  request 
implied  that  one  could  not  practice  medicine  within  the  meaning  of  the  words  in 
Section  8  without  prescribing  or  dealing  out  medicine,  that  is,  prescribing  or 
dealing  out  a  substance  used  as  a  remedy  for  disease. 

The  judge,  on  the  other  hand,  allowed  the  jury  to  find  that  one  might  practice 
medicine  within  the  meaning  of  the  statute,  that  is,  might  practice  the  healing 
art,  or  the  art  or  science  which  relates  to  the  prevention,  cure  or  alleviation  of 
disease,  without  necessarily  prescribing  or  dealing  out  a  substance  to  be  used  as 
a  medicine.  In  this  the  court  thinks  he  was  right.  It  would  be  too  norrow  a 
view  of  the  practice  of  medicine  to  say  that  it  could  not  be  engaged  in  any  case 
otherwise  than  by  prescribing  or  dealing  out  a  substance  to  be  used  as  a  remedy. 
The  science  of  medicine,  that  is,  the  science  which  relates  to  the  prevention,  cure 
or  alleviation  of  disease,  covers  a  broad  field,  and  is  not  limited  to  that  depart- 
ment of  knowledge  which  relates  to  the  administration  of  medicinal  substances. 
It  includes  a  knowledge,  not  only  of  the  functions  of  the  organs  of  the  human 
body,  but  also  of  the  diseases  to  which  these  organs  are  subject,  and  of  the  laws 
of  health  and  the  modes  of  living  which  tend  to  avert  or  overcome  disease,  as 
well  as  of  the  specific  methods  of  treatment  that  are  most  effective  in  promoting 
cures.  It  is  conceivable  that  one  may  practice  medicine  to  some  extent,  in  cer- 
tain classes  of  cases,  without  dealing  out  or  prescribing  drugs  or  other  sub- 
stances to  be  used  as  medicines.  It  is  conceivable  that  one  may  do  it  in  other 
ways  than  those  practiced  as  a  part  of  their  respective  systems,  by  either 
"osteopathists,  pharmacists,  clairvoyants  or  persons  practicing  hypnotism,  mag- 
netic healing,  mind  cure,  massage  cure  science,  or  the  cosmopathic  method  of 
healing." 

The  purpose  of  the  statute  seems  to  be  to  permit  the  practice  of  these  several 
methods  of  treatment,  including  everything  that  strictly  belongs  to  each;  but 
not  to  permit  the  unlicensed  practice  of  medicine  otherwise.  If  a  practice  of 
medicine  otherwise,  without  dealing  out  or  prescribing  drugs  or  other  substances 
to  be  used  as  medicine,  is  possible,  the  rulings  and  refusals  to  rule  were  right. 
The  court  thinks  such  a  practice  of  medicine  is  possible,  and  the  defendant's 
exceptions  are  overruled. 


VALIDITY  OF  A  MEDICAL  PRACTICE  ACT— COMPLAINT 
People  v.  Phippin,  10  Mich.  6;  37  N.  W.  888 

1888 

William  W.  Phippin  was  arrested  on  July  28,  1887,  for  unlawfully  advertising 
and  holding  himself  out  to  practice  medicine. 

The  respondent  was  tried  and  convicted  and  appealed  to  the  circuit  court  for 
the  county  of  Kent.  Before  the  trial  of  the  cause  in  the  circuit  court,  a  motion 
was  made  to  dismiss  the  complaint  and  warrant,  quash  the  proceedings,  and  dis- 
charge the  respondent.  The  court  overruled  the  motion,  and  on  trial  the  respond- 
ent was  found  guilty.  The  defendant  brings  the  case  to  this  court  upon  writ  of 
error,  and  assigns  as  error — "First,  the  circuit  court  erred  in  not  granting 
respondent's  motion  to  dismiss  the  complaint  and  warrant  herein,  and  to  quash 
the  proceedings,  and  discharge  the  respondent;  second,  the  circuit  court  erred 
in  permitting  Exhibits  A,  B,  and  C  to  be  read  in  evidence  to  the  jury;  third,  the 
circuit  court  erred  in  not  instructing  the  jury  that  there  is  no  proof  that  between 


354 

the  29th  day  of  June  and  the  28th  day  of  July  this  man  advertised  or  held  him- 
self out  to  practice  medicine." 

We  think  the  complaint  sufficiently  specific.  The  other  objections  to  the  com- 
plaint are  not  well  taken.  The  objection  that  there  was  no  evidence  in  the  case 
to  go  to  the  jury  that  respondent  advertised  or  held  himself  out  to  practice  med- 
icinie  between  June  29th  and  July  28th  has  no  force.  It  was  shown  upon  the 
trial  that  he  was  called  by  Mr.  Jones  to  visit  his  wife,  and  did  visit  her,  and 
claiming  to  be  a  magnetic  healer;  that  Mrs.  Jones  was  sick,  and  her  husband  got 
him  to  cure  .her  if  he  could,  and  he  treated  her  as  a  magnetic  healer.  It  is  also 
shown  that  in  June  or  July  respondent  was  called  to  the  house  of  Mr.  Wheeler 
and  there  treated  Mrs.  Wheeler  and  child  as  a  magnetic  healer.  On  June  24, 
1884,  the  respondent  signed  and  swore  to  a  paper  that  purported  to  be  a  med- 
ical practitioner's  sworn  statement,  and  he  had  a  sign  out  as  "Dr.  W.  W. 
Phippin,  Magnetic  Healer."  Mr.  Wheeler's  child  died,  and  a  "certificate  of 
death"  was  made  by  the  respondent.  Proof  was  also  offered  tending  to  show  that 
respondent  had  not  practiced  medicine  continuously  for  five  years  in  this  state, 
and  that  he  was  not  a  graduate  of  any  legally  authorized  medical  college  in  said 
state,  or  in  any  of  the  United  States,  or  in  any  other  country. 

Exhibits  were  received  and  read  in  evidence  to  show  that  respondent  held 
himself  out  to  practice  medicine.  All  these  facts  were  submitted  to  the  jury 
under  proper  instructions  from  the  court,  and  under  the  facts  so  submitted  the 
jury  found  the  respondent  guilty. 

The  claim  of  respondent's  counsel  that  the  law  under  which  the  respondent 
was  convicted  has  been  repealed  is  abandoned  on  the  argument,  and  needs  no 
further  mention. 

Kespondent's  counsel  also  alleges  that  the  object  of  the  act  is  not  expressed 
in  its  title,  and  is  therefore  void,  under  section  20,  art.  4,  of  the  constitution  of 
this  state,  which  provides:  "No  law  shall  embrace  more  than  one  object,  which 
shall  be  expressed  in  its  title,"  etc.  We  think  the  object  is  fairly  indicated  in 
the  title,  and  the  body  of  the  act  is  not  inconsistent  or  incongruous  with  the 
title,  and  that  this  objection  is  not  well  taken. 

The  court  finds  no  error  in  the  record.  The  only  remaining  question  is  upon 
the  constitutionality  of  the  act  itself  under  which  respondent  was  convicted. 

It  is  claimed  by  the  counsel  for  the  respondent  that  the  act  is  unconstitutional 
for  the  reason  that  its  provisions  are  in  conflict  with  and  repugnant  to  section 
1,  art.  14,  of  the  amendments  to  the  constitution  of  the  United  States. 

The  court  reviews  the  cases  cited  by  the  counsel  for  the  respondent  that 
the  distinction  might  be  seen  between  them  and  the  case  under  consideration. 
Statutes  very  similar  to  this  have  been  upheld  in  many  of  the  states,  where 
their  constitutionality  has  been  brought  in  question,  and  in  many  of  the  states 
very  similar  statutes  have  been  enforced  without  question,  and  we  are  unable 
to  find  a  case  in  the  courts  of  any  of  our  sister  states,  or  in  the  federal  courts, 
where  such  statutes  have  been  overturned  upon  constitutional  grounds  as, 
"abridging  the  privileges  and  immunities  of  citizens  of  the  United  States,"  or  as 
"depriving  any  person  of  property  without  due  process  of  law,"  or  as  "being  in 
conflict  with  section  2  of  said  article,  providing  that  the  citizens  of  each  state 
shall  be  entitled  to  all  the  privileges  and  immunities  of  the  citizens  of  the  sev- 
eral states."  The  several  states  of  the  Union  possess  a  general  police  power,  by 
which  persons  and  property  are  subjected  to  all  kinds  of  restraints  and  burdens, 
in  order  to  secure  the  general  comfort,  health,  and  prosperity  of  the  state.  What- 
ever differences  of  opinion  may  exist  as  to  the  extent  and  boundaries  of  the  police 
power,  and  however  difficult  it  may  be  to  render  a  satisfactory  definition  of  it, 
there  seems  to  be  no  doubt  that  it  does  extend  to  the  protection  of  the  lives, 
health,  and  property  of  the  citizens,  and  to  the  preservation  of  good  order  and 
public  morals.  They  belong  emphatically  to  that  class  of  objects  which  demand 
the  application  of  the  maxim  solus  populi  suprema  lex;  and  they  are  to  be 
attained  and  provided  for  by  such  appropriate  means  as  the  legislative  discretion 
may   devise.     A   great  variety   of   cases   could  be   enumerated  where   the  state 


355 

legislatures  have  required  licenses  to  be  granted  before  persons  could  engage  in 
certain  kinds  of  business  or  in  certain  professions.  The  practice  of  the  law  is 
a  profession  which  the  legislature  of  every  state  has  deemed  one  which  should 
be  regulated  by  law,  and  those  engaged  in  it  are  under  restraint  for  the  protec- 
tion of  the  general  public.  Persons  proposing  to  engage  in  that  profession  are 
required  to  pass  an  examination  before  some  court  or  persons  qualified  to  deter- 
mine whether  the  applicant  has  the  qualifications  necessary  to  practice  law.  The 
design  of  this  license  is  to  protect  the  community  from  the  consequences  of  a 
want  of  professional  qualifications,  and  for  the  reason  that  none  but  those  who 
have  been  specially  educated  with  reference  to  practicing  law  can  do  so  without 
great  injury  to  the  community,  who  must  employ  lawyers  in  their  business,  and 
who  are  necessarily  incompetent  to  judge,  and  who  would  otherwise  be  imposed 
upon  by  all  sorts  of  pretenders,  solicitors  for  business,  and  ignorant  of  their 
profession.  The  right  of  the  legislature  is  universally  recognized  to  restrain 
persons  in  their  business  or  professions  when  the  public  security  or  prosperity 
would  be  promoted  by  such  restraints.  The  legislatures  have  frequently  gone 
further,  and  imposed  a  tax  upon  persons  practicing  law,  and  these  laws  have 
been  upheld.  There  is  no  good  reason  why  restraints  should  not  be  placed  upon 
the  practice  of  medicine  as  well  as  the  law.  The  public  are  more  directly 
interested  in  this  than  in  the  practice  of  law;  and  persons  who  engage  in  this 
profession  require  a  special  education  to  qualify  them  to  practice.  A  great 
majority  of  the  public  know  little  of  the  ills  that  human  flesh  is  heir  to;  an£ 
there  is  no  profession,  no  occupation  or  calling,  where  people  may  more  easily 
or  readily  be  imposed  upon  by  charlatans.  It  is  almost  an  every-day  experience 
that  people  afflicted  with  disease  will  purchase  and  swallow  all  sorts  of  nostrums 
because  some  quack  has  recommended  it.  Up  to  the  passage  of  the  act  in 
question,  the  people  of  this  state  were  wholly  unprotected  against  quackery, 
except  such  protection  as  the  common  law  afforded.  The  constitutionality  of  such 
statutes  has  never  been  questioned. 

In  Wert  v.  Clutter,  37  Ohio  St.  348,  the  court  say:  "This  statute  was  not 
intended  to  create  a  right  in  any  one  to  practice  medicine.  It  was  simply 
intended  to  prohibit  the  exercise  of  the  right  (which  before  was  universal)  by 
unqualified  persons.  The  right  remains  in  all  persons,  except  those  from  whom 
it  is  taken  away  by  the  statute,  and  it  is  not  taken  away  from  a  person  who  at 
any  time  has  been  in  the  continuous  practice  for  ten  years  or  more."  This  act 
was  assumed  as  a  matter  of  course  to  be  valid. 

State  V.  Green,  14  N.  E.  Rep.  352,  holds  that  the  Indiana  act  of  April  11,  1S85, 
making  residence  in  that  state  for  a  certain  number  of  years  one  of  the  necessary 
qualifications  of  an  applicant  for  a  license  to  practice  medicine,  is  not  repugnant 
to  section  2,  art.  4,  nor  to  section  1,  art.  14,  of  the  United  States  constitution,  as 
granting  privileges  or  immunities  to  citizens  of  Indiana  not  given  to  citizens  of 
other  states. 

An  examination  of  this  act  will  not  disclose  any  violation  of  the  provisions  of 
the  constitution.  Every  graduate  of  any  legally  authorized  medical  college  in 
this  state,  or  in  any  of  the  United  States,  or  in  any  other  country,  after  having 
registered,  etc.,  may  practice  in  this  state.  It  must  be  conceded,  from  cases 
cited,  that  the  legislature  has  power  to  define  the  qualifications  of  those  who 
shall  be  licensed  to  practice  those  callings  or  professions  the  exercise  of  which 
may  affect  the  public  health  or  safety,  and  that  this  law  would  be  entirely 
constitutional  in  that  view  if  it  stopped  short  with  prohibiting  all  except  medical 
graduates  from  practicing.  But  it  is  contended  that  the  exception  in  favor  of 
those  who  come  under  subdivision  1,  §  2,  of  the  act,  "that  every  person  who  shall 
have  actually  practiced  medicine  continuously  for  at  least  five  years  in  this  state, 
and  who  is  practicing  when  this  act  shall  take  effect,  shall  be  deemed  qualified,"  etc. 
is  not  founded  upon  any  natural,  fair,  or  reasonable  distinction,  and  makes  it  a 
discriminating  law,  within  the  prohibitions  of  the  federal  constitution.  This 
question  was  raised  Ex  parte  Spinney,  10  Nev.  328;  and  Mr.  Justice  Beatty, 
delivering  the  opinion  of  the  court  in  that  case,  says:  "The  question  wTas  one  of 
policy,  and  its  decision  is  not  subject  to  our  review."  This  act  does  not  prohibit 
any  physician  or  surgeon  from  practice  of  medicine  or  surgery  because  he  is  not  a 
citizen  of  this  state;   it  makes  a  medical  qualification  the  test  of  the  right  to 


356 

practice.  The  real  test  of  the  right  to  practice  is  that  he  shall  be  a  "graduate  of 
any  legally  authorized  medical  college  in  this  state,  or  in  any  one  of  the  United 
States,  or  in  any  other  country";  and  in  this  there  is  no  discrimination.  Now, 
the  legislature  saw  fit,  in  establishing  this  test,  to  except  from  its  provisions 
a  certain  class  of  physicians  and  surgeons.  In  so  doing  it  in  effect  declared  that 
the  physician  or  surgeon  who  had  actually  practiced  medicine  continuously  for  at 
least  five  years  in  this  state,  and  who  is  practicing  when  this  act  shall  take  effect, 
was  as  well  qualified,  in  its  judgment,  to  continue  the  practice  of  his  profession  as 
the  student  coming  fresh  from  the  halls  of  college  with  his  diploma  was  to  commence 
it.  The  reasons  which  induced  the  legislature  to  insert  the  exception  may  have 
been  as  varied  as  the  different  minds  of  its  members.  It  certainly  had  power  to 
insert  it,  and  whether  the  power  was  reasonably  or  unreasonably  exercised,  or 
whether  it  was  expedient  to  enact  the  law,  are  questions  exclusively  within  the 
province  of  the  legislative  branch  of  the  state  government,  and  their  judgment 
must  necessarily  be  decisive  upon  these  questions. 
The  judgment  of  the  court  below  is  affirmed. 


WHAT  CONSTITUTES  GRADUATION 

Metcalfe  v.  State  Board  of  Registration  in  Medicine,  123  Mich.  661;  82  X.  W.  512 

1900 

Richard  Metcalfe  made  application  to  the  Michigan  State  Board  of  Registra- 
tion in  Medicine  for  registration  as  a  medical  practitiner  under  act  237  of  the 
Public  Acts  of  1899.  His  application  was  refused.  He  then  made  application 
for  a  writ  of  mandamus  to  compel  said  board  to  register  his  name  and  grant  him 
a  certificate  of  registration  under  the  provisions  of  section  three  of  the  act, 
subdivision  one  of  which  provided  that  the  applicant  should  be  registered  and 
given  a  certificate  if  he  should  present  sufficient  proof  within  six  months  after 
the  passage  of  the  act  of  his  having  already  been  legally  registered  under  act  No. 
167  of  1883,  as  amended  in  1887.  He  produced  proof  of  having  been  registered 
in  February,  1897,  under  the  earlier  act,  and  insisted  that  the  board  was  not 
authorized  by  the  act  of  1899  to  look  behind  the  fact  of  previous  registration  to 
ascertain  whether  he  was  entitled  to  be  registered,  although  he  conceded  that  the 
law  of  1899  was  within  the  police  power  of  the  state,  and  that  the  legislature 
might  have  vested  the  board  with  full  power  to  investigate  the  right  of  the  appli- 
cant to  registration.  But,  before  passing  upon  the  case,  the  Supreme  Court  of 
Michigan  says  that,  inasmuch  as  the  provision  relied  upon  requh-ed  as  a 
prerequisite  to  registration  without  examination  that  the  applicant  should  have 
been  "already  legally  registered,"  it  was  necessary  to  turn  to  the  earlier  act  to 
ascertain  whether  he  was  "legally  registered."  This  provided  that  every  grad- 
uate of  any  legally  authoi'ized  medical  college  in  any  one  of  the  United  States 
should  be  deemed  qualified  to  practice  medicine  and  surgery  after  registration, 
and  that  the  latter  might  be  obtained  in  certain  cases  by  the  filing  of  an  affidavit 
showing  certain  facts.  Thereunder  an  affidavit  was  filed  by  this  party  which  was 
as  follows:  "State  of  Michigan,  County  of  Berrien,  ss.  Richard  Metcalfe  being 
duly  sworn  deposes  and  says,  that  he  is  a  physician  and  actually  engaged  in 
practice  in  the  county  above  named,  and  that  he  has  been  so  engaged  for  the 
period  of  ten  years  and  —  months;  also,  that  he  is  a  graduate  of  Independent 
Medical  College,  a  medical  college  located  at  Chicago,  in  the  State  of  Illinois; 
that  he  attended  said  college  for  the  period  of  one  day  during  the  examination 
and  graduated  therefrom  February  4th,  A.  D.  1897.  Deponent's  present  resi- 
dence and  place  of  business  is  St.  Joseph  in  said  county,  and  he  belongs  to  the 
Physio-Medical  School  of  Medicine.  That  he  practiced  under  Dr.  Hugons  for  a 
period  of  ten  years.  [Signed]  Richard  Metcalfe."  This  was  subscribed  and 
sworn  to  Feb.  5,  1897.  Now  this  leads  the  Supreme  Court  of  Michigan  to  state 
that  if  it  is  able  to  say  that  a  showing  of  attendance  for  one  day  only  and  the 
grant  of  a  diploma  by  a  so-called  medical  college  does  not  constitute  the  fortu- 
nate recipient  of  such  a  certificate  a  graduate  within  the  meaning  of  the  law 


157 

of  1887,  it  follows  that  on  the  face  of  the  record  of  Berrien  county  thia  appli- 
cant was  not  legally  registered.     And  it  declares  that  it  does  say  it,  and  that  it 

follows  that  he  was  not  entitled  to  the  relief  prayed. 


POLICE  POWER  TO  REGULATE  PRACTICE  OF  MEDICINE 
People  v.  Reetz,  127  Mich.  87;  86  X.  W.  S96 
1901 
The  Supreme  Court  holds  constitutional  Act  No.  237  of  the  Public  Acts  of 
Michigan  of  1899,  entitled  "An  act  to  provide  for  the  examination,  regulation, 
licensing  and  registration  of  physicians  and  surgeons,  and  for  the  punishment  of 
offenders  against  this  act,  and  to  repeal  acts  and  parts  of  acts  in  conflict  there- 
with." It  says  that  the  first  act  passed  by  the  legislature  of  Michigan  to  regu- 
late the  practice  of  medicine  and  surgery  was  Act.  No.  1G7,  Public  Acts  of  1883. 
This  was  amended  by  Act  No.  2G8,  Public  Acts  of  1887.  Then  followed  the  act  of 
1899,  covering  the  entire  subject,  and  providing  for  a  board  of  examiners.  The 
act  of  1899,  it  goes  on  to  say,  is  not  different  in  principle  from  the  other  acts.  If 
the  act  of  1883  was  valid,  then  the  act  of  1899  is  valid.  And  so  it  holds  it.  But 
it  was  further  argued  that  such  legislation  is  an  interference  with  the  inalienable 
right  of  a  citizen  when  ill  to  employ  anybody  he  chooses  as  his  physician.  The 
court's  answer  is  that  this  contention  is  not  supported  by  authority  or  reason. 
The  practice  of  medicine  affects  the  public  health,  and  it  is  clearly  within  the 
police  power  of  the  state  to  provide  that  those  dealing  with  disease  shall  be 
amply  qualified  to  do  so,  so  far  as  human  experience  and  education  may  qualify 
them.  If  this  contention  be  adopted,  then  the  law  providing  for  the  admission  of 
attorneys  to  practice  law  is  unconstitutional  and  void.  This  legislation  has  been 
almost  universally  sustained  by  the  courts  of  other  states,  and  the  Supreme 
Court  of  the  United  States.     (See  also  188  U.  S.  505,  23  Sup.  Ct.  Rep.,  390.) 


UNREGISTERED  PRACTITIONERS  MUST  GET  CERTIFICATES 
Hooper  v.  Batdorff,  llfl  Mich.  853;  10Jt  N.  W.  667 
1905 
The  Supreme  Court  of  Michigan  says  that  attention  was  called  to  the  fact 
that  the  act  of  1899  required  all  persons  engaged  in  or  who  wished  to  begin  the 
practice  of  medicine  and  surgery  to  make  application  for  a  certificate,  while  the 
amendatory  act  of  1903  omits  the  former  class,  thus  apparently  limiting  the  laws 
to  cases  of  beginners  in  practice.  But  the  court  thinks  this  inconsistent  with  the 
legislation  on  the  subject,  which  began  as  early  as  1883.  It  says  that,  consider- 
ing the  several  acts,  it  is  reasonable  to  believe  that  in  1903  the  legislature  took  it 
for  granted  that  practitioners  then  engaged  in  business  had  complied  with  the 
law  of  1899,  and  that  it  was  not  the  design  to  compel  them  to  make  application 
again.  The  court  can  not  believe  that  it  deliberately  intended  to  offer  a  premium 
to  law  breakers,  which  is  the  effect  of  the  first  stated  contention.  It  is  more 
reasonable  to  say  that  a  man  practicing  medicine  in  violation  of  law  prior  to  the 
taking  effect  of  the  act  of  1903  is  a  beginner  for  the  purpose  of  making  such 
application,  not  being  already  a  lawful  practitioner. 


VALIDITY  OF  LAW  AUTHORIZING  REVOCATION  OF  CERTIFICATE  FOR 

ADVERTISING  RELATIVE  TO  VENEREAL  DISEASES 
Kennedy  v.   the  State  Board  of  Registration  in  Medicine,  1^5  Mich.  2Sjlj  108 

N.  W.  730 
1906 

The  Supreme  Court  of  Michigan  had  before  it  the  question  of  the  constitu- 
tionality of  the  state  law  authorizing  the  board  to  revoke  a  physician's  certificate 
for  the  insertion  in  a  newspaper  of  an  advertisement  relative  to  venereal   dis- 


358 

eases.  Subdivision  6  of  section  3  of  No.  237  of  the  Public  Acts  of  Michigan  of 
1899,  as  amended  in  1903,  provides:  "The  board  of  registration  in  medicine  shall 
refuse  to  issue  a  certificate  of  registration  provided  for  in  this  section  to  any 
person  guilty  of  grossly  unprofessional  and  dishonest  conduct  of  a  character 
likely  to  deceive  the  public,  and  said  board  shall,  after  due  notice  and  hearing, 
revoke  a  certificate  issued  subsequent  to  the  date  of  the  passage  of  this  act,  or 
subsequent  to  the  date  of  the  passage  of  Act  No.  237  of  the  Public  Acts  of  1899, 
for  like  cause  or  for  offenses  involving  moral  turpitude.  .  .  .  And  pro- 
vided further,  after  the  passage  of  this  act,  the  board  may  at  its  discretion  revoke 
the  certificate  of  registration,  after  due  notice  and  hearing  of  any  registered 
practitioner  who  inserts  any  advertisement  in  any  newspaper,  pamphlet,  circular, 
or  other  written  or  printed  paper,  relative  to  venereal  diseases  or  other  matter  of 
any  obscene  or  offensive  nature  derogatory  to  good  morals." 

The  court  says  that  in  support  of  his  contention  that  this  section  was  uncon- 
stitutional, the  complainant  cited  several  cases.  The  strongest  and  best  reasoned 
of  these  cases  was  Matthews  v.  Murphy.  That  case  alone  would  receive  considera- 
tion because  the  grounds  on  which  it  was  held  inapplicable  made  all  the  others 
inapplicable.  In  that  case  it  was  held  that  a  statute  giving  the  State  Board  of 
Health  authority  to  revoke  a  certificate  to  practice  medicine  on  proof  that  the 
holder  was  guilty  of  "grossly  unprofessional  conduct  of  a  character  likely  to 
deceive  or  defraud  the  public"  was  unconstitutional  on  the  ground  that  the 
statute  did  not  advise  the  physician  "in  advance  what  act  or  acts  may  be  in 
violation  of  its  provisions.  .  .  .  He  might  do  an  act  which  he  regarded  as 
entirely  proper,  which  neither  violated  moral  law  nor  involved  turpitude,  still 
such  acts  might,  in  the  opinion  of  the  State  Board  of  Health,  amount  to  unpro- 
fessional conduct,  and  which  in  its  opinion  did  or  was  calculated  to  deceive  or 
defraud  the  public.  .  .  .  The  legislature  in  effect  has  attempted  to  commit 
to  the  State  Board  of  Health  the  right,  after  the  physician  has  done  some  act,  to 
determine  what  its  effect  is  to  be,  and,  if  in  its  judgment  he  should  be  deprived 
of  the  right  to  practice  his  profession,  it  can  inflict  the  punishment  on  him  by 
revoking  his  license."  This  reasoning  presented  no  argument  for  declaring  uncon- 
stitutional that  part  of  subdivision  6,  under  which  the  defendants  were  proceed- 
ing to  try  the  complainant,  viz.,  that  giving  them  authority  to  revoke  his  certifi- 
cate because  he  inserted  an  advertisement  in  a  newspaper  relative  to  venereal 
diseases.  Indeed,  in  deciding  Matthews  v.  Murphy,  the  court  recognizes  the  con- 
stitutionality of  such  a  law.  This  is  shown  by  the  following  quotation  from  its 
opinion,  viz.:  "If  the  legislature  desires  to  declare  for  what  acts  or  conduct  a 
physician's  license  to  practice  medicine  shall  be  revoked  it  is  competent  to  do  so, 
and  to  vest  in  some  tribunal  authority  to  investigate  and  try  the  charge  which 
may  be  made  under  such  a  statute."  What  the  Supreme  Court  of  Michigan  would 
have  decided  had  the  constitutionality  of  the  first  part  of  subdivisin  6  been  neces- 
sary to  be  decided  it  does  not  intimate,  unless  such  intimation  may  be  found, in 
the  above  remarks. 

But,  further,  as  to  the  law  which  authorized  the  defendants  to  revoke  the 
complainant's  certificate  on  the  ground  that  he  inserted  an  advertisement  rela- 
tive to  venereal  diseases  in  a  newspaper,  the  court  says  that  it  might  fairly  be 
stated  that  all  of  the  many  reasons  which  he  advanced  in  support  of  the  conten- 
tion that  it  was  unconstitutional  rested  on  the  assumption  that  the  revocation 
of  that  certificate  was  an  exercise  of  judicial  power,  and  that  all  of  his  objec- 
tions to  the  constitutionality  of  the  law  were  completely  answered  by  saying  that 
this  assumption  was  unfounded.  So  far  as  the  court  has  been  able  to  discover, 
there  is  no  authority  against  it. 

Nor  does  the  court  consider  that  the  statute  in  question  violates  the  rule  that 
a  statute  can  not  deprive  one  of  the  right  to  seek  redress  in  a  court  for  the 
invasion  of  a  constitutional  right.  It  says  that  if  this  statute  is  observed  no  one 
will  be  deprived  of  a  constitutional  right,  and  in  that  case  a  provision  for  an 
appeal  to  a  court  is  not  essential.  If  through  non-observance  of  the  statute  the 
complainant  or  any  other  physician  is  deprived  of  a  constitutional  right,  there  is 
nothing  therein  which  prevents  his  obtaining  adequate  redress  in  a  court. 


359 

POWER   OF   BOARD— UNPROFESSIONAL    CONDUCT 

Stale  ex  rel.  Powell  v.  State  Medical  Examining  Hoard,  32  Minn.  82%;    ~>'i    !"'■ 

Rep.  575;  20  N.  W.  238 

1884 

The  relator  sought  by  mandamus  to  compel  the  State  Medical  Examining  Board 
to  issue  to  him  the  certificate  required  by  chapter  125  of  the  Laws  of  1883,  to 
authorize  him  to  practice  the  profession  of  a  physician  in  this  state.  He  appealed 
from  an  order  of  the  district  court  quashing  an  alternative  writ. 

The  act  referred  to  creates  a  board  of  medical  examiners,  consisting  of  the 
faculty  of  the  medical  department  of  the  University  of  Minnesota,  and  requires 
all  persons,  excepting  such  as  have  been  practicing  medicine  five  years  within  the 
state,  to  procure  from  this  board  its  certificate.  Section  9  provides:  "The  board 
of  examiners  may  refuse  certificates  to  individuals  guilty  of  unprofessional  or 
dishonorable  conduct,  and  they  may  revoke  certificates  for  like  causes." 

The  relator  applied  for  a  certificate,  presenting  a  diploma,  which  was  found  to 
be  genuine,  showing  that  he  was  a  graduate  of  the  Louisville  (Kentucky)  Medical 
College,  in  which  institution  he  had  passed  the  prescribed  course  of  study.  His 
application  was  refused  upon  the  ground  that  the  applicant  was  at  that  time 
conducting  himself  in  an  unprofessional  and  dishonorable  manner,  in  advertising 
himself  through  the  newspapers  and  by  circulars  to  be  a  medicine  man  of  the 
Winnebago  tribe  of  Indians,  adopted  by  that  tribe,  and  assuming  the  name  of 
"White  Beaver";  and  claiming  in  such  publications  the  proprietorship  of  certain 
specific  remedies,  one  of  which  he  claimed  would  cure  cholera  morbus  when  taken 
internally,  and  rheumatism  when  applied  externally;  which  claims  are  alleged  by 
the  board  to  be  untrue  and  impossible. 

The  court  first  considers  the  constitutionality  of  that  part  of  the  act  on  which 
the  refusal  of  the  board  to  grant  its  certificate  is  based.  The  relator  urges  this 
objection  upon  the  grounds  that  the  act  gives  to  the  appellant  no  opportunity  to 
be  heard  in  his  own  defense  in  relation  to  any  charge  of  unprofessional  and  dis- 
honorable conduct,  and  that  by  its  enforcement  he  is  deprived  of  his  property 
without  due  process  of  law.  These  objections  to  the  validity  of  the  act  cannot  be 
sustained.  The  vocation  of  the  physician  is  in  itself  a  lawful  one,  and  the  right 
of  any  person  to  engage  in  it  is  only  subject  to  such  restrictions  as  the  legislature 
may  impose  in  the  exercise  of  its  general  police  power.  While,  therefore,  the  right 
to  engage  in  this  practice  is  a  qualified  one,  even  that  qualified  right  is  not  to  be 
arbitrarily,  and  without  reason,~denied.  It  is  so  opposed  to  the  principles  of  the 
common  law  that  any  fact  affecting  the  rights  of  an  individual  shall  be  investi- 
gated and  determined  ex  parte,  and  without  opportunity  being  afforded  to  the 
party  to  be  affected  thereby  to  be  heard,  that  this  act  should  not  be  construed  as 
contemplating  such  a  proceeding  unless  that  purpose  is  expressed  in  the  plainest 
terms.  While  the  act  does  not  prescribe  the  manner  in  which  the  proceedings  for 
the  determination  of  the  matters  referred  to  in  section  9  shall  be  conducted,  there 
is  nothing  to  indicate  that  it  was  intended  that  such  investigations,  and  the 
determination  of  the  fact,  should  be  made  ex  parte,  or  without  reasonable  oppor- 
tunity given  to  the  party  interested  to  be  heard.  The  contrary  conclusion  is 
rather  indicated  by  the  requirement  that  the  board  shall  "take  testimony  in  all 
matters  relating  to  the  duties,"  and  by  the  fact  that  a  right  of  appeal  from  the 
determination  of  the  board  is  conferred. 

It  may  be  stated  as  a  general  proposition  that  any  person  has  a  right  to 
pursue  any  lawful  calling,  but  in  respect  to  certain  occupations,  not  in  themselves 
unlawful,  this  right  is  necessarily  subject  to  legislative  restrictions  from  consid- 
erations of  public  policy.  In  the  profession  of  medicine,  as  in  that  of  the  law,  so 
great  is  the  necessity  for  special  qualifications  in  the  practitioner,  and  so  injurious 
the  consequences  likely  to  result  from  a  want  of  it,  that  the  power  of  the  legisla- 
ture to  prescribe  such  reasonable  conditions  as  are  calculated  to  exclude  from  the 
profession  those  who  are  unfitted  to  discharge  its  duties,  cannot  be  doubted. 

But  the  legislature  has  the  same  power  to  require,  as  a  condition  of  the  right 
to  practice  the  profession,  that  the  petitioner  shall  be  possessed  of  the  qualifica- 
tions of  honor  and  a  good  moral  character,  as  it  has  to  require  that  he  shall  be 
learned  in  the  profession.    It  cannot  be  doubted  that  the  legislature  has  authority, 


360 

in  the  exercise  of  its  general  police  power,  to  make  such  reasonable  requirements 
as  may  be  calculated  to  bar  from  admission  to  this  profession  dishonorable  men, 
whose  principles  or  practices  are  such  as  to  render  them  unfit  to  be  intrusted 
with  the  discharge  of  its  duties.  And  as  the  duty  of  determining  upon  these 
qualifications,  both  as  to  learning  and  skill,  and  as  to  honor  and  moral  fitness, 
must  from  necessity  be  committed  to  some  person  or  body  other  than  the  legisla- 
ture, there  is  no  reason  why  it  may  not  be  committed  to  the  legally  constituted 
body  of  men,  learned  in  this  profession,  named  in  this  act. 

The  court  finds  no  decision  sustaining  the  position  that  an  adverse  determina- 
tion of  sueh  a  body  upon  such  a  question,  by  reason  of  which  the  appellant  is 
precluded  from  engaging  in  the  practice  of  his  profession,  deprives  him  of  his 
property  without  due  process  of  law,  or  that  such  enactments  are  for  any  reason 
unconstitutional.  On  the  contrary,  sueh  enactments  have  been  repeatedly  enforced, 
and  their  constitutionality  sustained,  in  cases  involving  a  consideration  of  those 
provisions  relating  to  the  mode  of  determining  the  qualification  of  the  practitioner 
in  respect  to  learning. 

The  legislative  requirement  of  a  good  moral  character  has  also  been  sustained. 
There  can  be  no  distinction,  upon  constitutional  grounds,  as  to  the  mode  of  deter- 
mining in  regard  to  professional  or  intellectual  fitness,  and  as  to  the  moral  fitness 
for  the  profession.  The  means  properly  adopted  by  the  legislature  to  determine 
the  one,  cannot  be  said  to  be  unconstitutional  when  prescribed  for  the  determina- 
tion of  the  other. 

The  court  holds  that  the  words  "unprofessional  or  dishonorable  conduct"  do 
not  refer  to  matters  of  merely  professional  ethics,  but  that  the  term  "unprofes- 
sional" was  used  convertibly  with  "dishonorable."  The  meaning  may  be  expressed 
by  using  the  conjunctive  and  in  place  of  disjunctive  or.  It  might,  for  instance,  be 
deemed  unprofessional  for  the  members  of  one  school  of  medical  practice  to  consult 
professionally  with  a  member  of  a  different  school;  but  such  matters  are  not 
within  the  plain  purpose  of  the  act,  which  was  the  affording  of  protection  to  the 
people  against  ignorant,  unqualified  and  unworthy  practitioners  of  this  profes- 
sion. 

The  law  under  which  the  board  acted  was  constitutional  and  the  relator 
cannot,  by  mandamus,  compel  the  issuing  of  a  certificate  to  him.  The  action  of 
the  board  is  not  merely  ministerial,  but  partakes  of  a  judicial  character.  It  is 
to  inquire  concerning  and  to  determine  as  to  the  existence  of  certain  facts,  and 
whether  it  should  grant  a  certificate  of  qualification  to  an  applicant  must  depend 
upon  that  determination.  The  board  has  not  refused  or  neglected  to  act  upon 
the  matter  submitted  to  it.  It  has  decided  upon  the  application,  and  the  correct- 
ness of  that  decision,  involving  the  exercise  of  the  "judgment  of  the  members  of 
the  board,  cannot  be  brought  into  review  by  this  proceeding,  and  is  not  properly 
before  us. 


REVOCATION  OF  LICENSE   NOT  A  JUDICIAL   PROCESS 

State  ex  rel.  Chapman  v.  State  Board,  34  Minn.  387;  26  N.  W.  123 

1885 

The  State  Board  of  Medical  Examiners  under  the  act  of  1883  notified  the 
plaintiff  that  a  complaint  having  been  made  to  the  board  that  he  had  been  guilty 
of  dishonorable  and  unprofessional  conduct,  he  must  appear  and  show  cause  why 
his  certificate  should  not  be  revoked.  The  plaintiff,  having  obtained  a  writ  of 
prohibition  against  the  board,  asked  to  have  it  made  absolute,  on  the  ground  that 
the  act,  in  so  far  as  it  gives  the  board  power  to  revoke  certificates,  is  unconstitu- 
tional, since  a  license  to  practice  medicine  when  once  granted  is  property  and  the 
revocation  of  this  license  is  an  exercise  of  judicial  power  which  cannot  be  vested 
in  any  executive  or  administrative  board  but  only  in  the  courts,  and  that  to 
assume  to  vest  this  power  in  this  board  is  to  deprive  a  person  of  his  property 
without  due  process  of  law.  The  supreme  court  says  that  the  fallacy  of  this 
argument  is  the  assumption  that  the  revocation  of  such  a  license  is  an  exercise 
of  judicial  power.  Due  process  of  law  is  not  necessarily  judicial  proceedings. 
The  exercise  of  the  general  police  power  of  the  state  often  materially  interferes 
with  or  restricts  a  person's  enjoyment  of  his  property,  yet  it  was  never  held  that 


361 

the  exercise  of  the  police  power  must  be  by  judicial  proceedings  in  court  in  order 
to  constitute  due  process  of  law.  There  is  no  possible  distinction  between  refusing 
to  grant  a  license  and  revoking  one  already  granted.  Both  acts  are  an  exercise  of 
the  police  power  and  their  object  is  identical,  viz.,  to  exclude  an  incompetent  or 
unworthy  person  from  this  employment.  Therefore,  the  same  body  which  may  be 
vested  with  the  power  to  grant  or  to  refuse  to  grant  a  license  may  also  be  vested 
with  the  power  to  revoke  that  license.  The  constitutionality  of  laws  under  the 
police  power  revoking  licenses  of  many  different  classes  has  often  been  sustained 
and  has  rarely  been  questioned. 


MAKING  FALSE  STATEMENTS  DISHONORABLE  CONDUCT 

State  ex  rel.  Feller  V.  State  Board  of  Medical  Examiners,  etc.,  3/f   Minn.  391; 

26  N.  W.  125. 
1885 

This  is  an  application  for  a  writ  of  prohibition  to  restrain  the  State  Board  of 
Medical  Examiners  from  further  action  in  proceedings  instituted  to  revoke,  on  the 
ground  of  alleged  unprofessional  and  dishonorable  conduct,  a  certificate  issued  to 
relator  entitling  him  to  practice  medicine.  The  ground  upon  which  the  writ 
is  asked  for  is  that  the  facts  stated  in  the  information  or  complaint  do  not  consti- 
tute "unprofessionable  or  dishonorable"  conduct,  within  the  meaning  of  the 
statute.  The  respondent  makes  the  point  that,  if  true,  this  is  no  ground  for 
issuing  the  writ;  at  least  not  until  relator  had  first  pleaded  to  the  jurisdiction  of 
the  board,  and  his  plea  had  been  denied.  The  court  holds  that  the  complaint  or 
information  is  entirely  sufficient.  The  argument  of  relator  proceeds  upon  the 
assumption  that  all  that  is  charged  is  a  breach  of  a  rule  of  professional  ethics  by 
simply  publishing  an  advertisement  of  relator's  business  as  a  physician.  But  this 
is  a  mistake.  The  complaint  sets  out,  in  full,  the  advertisement  in  which  the 
relator,  among  other  things,  asserts  to  the  public  his  ability  to  speedily  cure 
all  chronic,  nervous,  blood,  and  skin  diseases  of  both  sexes;  also  all  diseases  of  the 
eye  and  ear,  without  injurious  drugs  or  hindrance  from  business;  all  old,  linger- 
ing constitutional  diseases,  where  the  blood  is  impure,  causing  ulcers,  blotches, 
sore  throat  and  mouth,  pains  in  the  head  and  bones,  cured  for  life,  etc.  The  com- 
plaint further  charges  that  relator  published  this  advertisement  for  the  purpose 
of  soliciting  and  procuring,  wrongfully  and  fraudulently,  patients  to  submit  them- 
selves to  medical  treatment  by  him;  and  that  the  statements  therein  contained  are 
false,  and  that  relator  well  knew  them  to  be  false  when  he  made  them,  and  that  it 
Avas  intended  thereby  to  deceive  the  public  and  impose  on  the  credulous  and 
ignorant.  The  gist  of  this  charge  is,  not  that  he  advertised  his  business,  nor 
merely  that  the  statements  contained  in  the  advertisement  were  false,  but  also 
that  the  relator  knew  them  to  he  false,  and  made  them  icith  intent  to  deceive  and 
impose  on  the  public.  If  true,  this  is  unprofessional  and  dishonorable  conduct  of 
the  grossest  kind. 

The  further  point  is  made  that  the  board  is  assuming  to  exceed  its  jurisdiction 
because  it  cites  relator  to  show  cause,  not  only  why  his  certificate  should  not  be 
revoked,  but  also  why  he  should  not  be  forever  debarred  from  practicing  medicine 
in  this  state.  There  is  nothing  in  this  point.  If  relator's  certificate  is  revoked, 
the  legal  effect  will  be  to  forever  debar  him  from  the  practice  unless  the  statute 
is  repealed,  or  he  obtains  a  new  certificate. 

Writ  quashed. 


STATUTE    CONSTRUED— POWER    NOT   ARBITRARY 

State  V.  Fleischer,  41  Minn.  69;  42  N.  W.  696. 

1889 

The  defendant  stands  convicted  of  the  offense  of  practicing  medicine  in  this 
state  without  first  obtaining  license,  as  prescribed  by  the  terms  of  chapter  9,  Gen. 
Laws  1887.  On  appeal  he  alleges  the  unconstitutionality  of  the  entire  chapter, 
because  section  3,  after  specifying  the  various  branches  in  which  the  applicant 


362 

must  be  examined  by  the  board,  which  consists  of  nine  members,  and  the  number 
of  courses  of  lectures  he  must  have  attended,  provides  that  "after  examination 
said  board  shall  grant  a  license  to  such  applicant  to  practice  medicine  and  surgery 
in  the  state  of  Minnesota,  which  said  license  can  only  be  granted  by  the  consent  of 
not  less  than  seven  members  of  said  board,"  etc.  The  appellant's  position  is  that 
by  means  of  the  language  quoted,  and  especially  by  the  use  of  the  noun  "consent," 
the  legislature  intended  to  and  did  clothe  the  board  of  examiners  with  the  right 
and  power  to  absolutely  disregard  the  learning  and  qualifications  of  the  applicant, 
to  unreasonably  and  arbitrarily  reject  his  claims,  and,  at  will,  grant  or  refuse  the 
contemplated  certificate.  No  such  construction  should  be  given  the  statute  unless 
the  design  is  unmistakably  manifest,  and  the  court  does  not  think  it  is.  From  the 
spirit  and  object  of  the  act,  it  is  obvious  that  the  lawmakers  intended  to  establish 
a  high  standard  of  qualification  and  fitness  for  the  medical  profession,  whereby 
the  people  might  be  protected  from  ignorance  and  quackery.  In  creating  the  board 
before  which  all  persons  desiring  to  practice  medicine  must  appear  for  an  investi- 
gation as  to  skill  and  ability,  it  was  within  the  legislative  discretion  to  require 
that  all,  or  more  or  less  than  a  majority,  of  its  members  should  participate  in  the 
examination,  and,  before  issuing  a  certificate,  affirmatively  pass  upon  the  merits 
of  each  applicant.  The  requirement  that  at  least  seven  of  the  nine  members  must 
concur  and  approve,  is  a  slight  innovation  upon  the  majority  rule,  which  would 
prevail  in  the  absence  of  another.  It  is  a  mere  declaration  of  the  mode  in  which  a 
determination  must  be  reached.     Judgment  affirmed. 


REASONABLE  QUALIFICATION  STANDARD  UPHELD 

State  v.  Vandersluis,  1,2  Minn.  129;  1,3  N;  W.  789;  6  L.  B.  A.  119 

1889 

That  the  legislature  may  prescribe  such  reasonable  conditions  on  the  right  to 
practice  medicine  or  law  as  will  exclude  from  the  practice  those  who  are  unfitted 
for  it,  is  so  well  settled  by  decisions  of  the  courts  as  to  be  no  longer  an  open  ques- 
tion. The  power  rests  on  the  right  to  protect  the  public  against  the  injurious 
consequences  likely  to  result  from  allowing  persons  to  practice  those  professions 
who  do  not  possess  the  special  qualifications  essential  to  enable  the  practitioner  to 
practice  the  profession  with  safety  to  those  who  employ  him.  The  same  reasons 
apply  with  equal  force  to  the  profession  of  dentistry,  which  is  but  a  branch  of  the 
medical  profession.  In  the  exercise  of  that  power,  the  legislature  may  require,  as 
a  condition  of  the  right  to  practice  that  the  person  shall  procure  a  license;  maj 
designate  some  officer  or  board  to  issue  the  license,  and  to  determine  whether 
an  applicant  possesses  the  qualifications  required  to  entitle  him  to  it;  and  may 
prescribe  what  qualifications  shall  be  required,  and  how  the  possession  of  them  by 
the  applicant  shall  be  ascertained.  It  is  for  the  legislature,  and  not  for  the  courts, 
to  determine  these  things.  The  only  limit  to  the  legislative  power  in  prescribing 
conditions  to  the  right  to  practice  in  a  profession  is  that  they  shall  be  reasonable. 
Whether  they  are  reasonable,  the  courts  must  judge.  By  the  term  "reasonable" 
we  do  not  mean  expedient,  nor  do  we  mean  that  the  conditions  must  be  such  as  the 
court  would  impose  if  it  were  called  on  to  prescribe  what  should  be  the  conditions. 
They  are  to  be  deemed  reasonable  where,  although  perhaps  not  the  wisest  and  best 
that  might  be  adopted,  they  are  fit  and  appropriate  to  the  end  in  view,  to-wit,  the 
protection  of  the  public,  and  are  manifestly  adopted  in  good  faith  for  that  pur- 
pose. If  a  condition  should  be  clearly  arbitrary  and  capricious;  if  no  reason  with 
reference  to  the  end  in  view  could  be  assigned  for  it;  and,  especially,  if  it  appeared 
that  it  must  have  been  adopted  for  some  other  purpose — such,  for  instance,  as  to 
favor  or  benefit  some  persons  or  class  of  persons — it  certainly  would  not  be 
reasonable,  and  would  be  beyond  the  power  of  the  legislature  to  impose. 

After  reviewing  the  Dental  Act  of  1889  the  court  says  that  section  5,  the 
provisions  of  which  furnish  one  of  the  grounds  on  which  appellant  assails  the  act 
as  unconstitutional,  provides  that  any  person  who  shall  desire  to  begin  the  practice 
of  dentistry  in  the  state  after  September  1,  1889,  shall  make  application  for 
examination  to  the  board  of  examiners,  paying  a  fee  of  $10,  and  shall  undergo  an 
examination.  The  section  further  enacts :  "In  order  to  be  eligible  for  such  exam- 
ination, such  person  shall  present  to  said  board  his  diploma  from  some  dental 


363 

college  in  good  standing,  and  shall  give  satisfactory  evidence  of  his  right  to  the 
possession  of  the  same:  Provided,  also,  that  the  hoard  may  in  its  discretion 
admit  to  examination  such  other  persons  as  shall  give  satisfactory  evidence  of 
having  been  engaged  in  the  practice  of  dentistry  ten  years  prior  to  the  date  of  the 
passage  of  this  act.  Said  board  shall  have  the  power  to  determine  the  good 
standing  of  any  college  or  colleges  from  which  such  diplomas  may  have  been 
granted."  It  then  goes  on  to  prescribe  the  manner,  extent  and  subjects  of  the 
examination.  Appellant  claims  the  section  to  be  objectionable  because,  no  matter 
how  well  qualified  by  learning  and  skill  or  experience  one  may  be,  he  has  no  abso- 
lute right  to  be  examined  by  the  board,  unless  he  has  a  diploma  from  a  dental 
college  in  good  standing,  such  good  standing  to  be  determined  by  the  board,  and 
this  he  claims  to  be  discrimination  between  the  rich  and  poor,  because  one  may  be 
pecuniarily  able,  and  another  not  able,  to  attend  a  dental  college.  The  mere  fact 
of  discrimination  in  such  a  law  is  no  objection  to  it.  Requiring  a  certain  degree 
of  learning  and  skill  as  a  condition  of  being  allowed  to  practice  is  discrimination 
between  those  who  have  and  those  who  have  not  that  regree  of  learning  and  skill — 
between  those  who  are  able  and  those  who  are  not  able  to  acquire  it.  If  there  were 
discrimination  between  persons  or  classes  on  any  matter  not  pertinent  to  the 
legitimate  purpose  of  the  law,  to-wit,  to  secure  fitness  and  competency  in  those 
who  shall  be  permitted  to  practice,  it  would  be  objectionable.  As,  for  instance,  if 
it  were  as  to  place  of  birth,  color,  or  religious  belief.  The  requirement  of  a 
diploma  from  some  college  or  learned  society,  in  order  to  practice  medicine,  has 
been  inserted  in  the  laws  of  many  states,  and  questioned  in  but  few.  The  fact  of 
having  graduated  at  and  received  a  diploma  from  a  school  or  college  devoted  to 
teaching  the  particular  science,  medicine,  surgery,  or  dentistry,  bears  directly 
upon  the  person's  qualifications  to  practice.  The  legislature  might  have  made 
that  the  sole  test.  That  this  statute  allows,  in  the  discretion  of  the  board,  ten 
years'  practice  prior  to  the  passage  of  the  act  as  a  substiute  for  the  diploma  of  a 
college,  furnishes  no  objection,  on  constitutional  grounds,  to  the  act.  It  is  asked 
why  ten  years'  practice  after  the  passage  of  the  act  ought  not  to  entitle  one  to  the 
same  right  as  ten  years'  practice  before  its  passage.  A  sufficient  answer  to  this 
is  that  such  practice  after  the  act,  if  in  this  state,  would  be  in  violation  of  law, 
and  the  legislature  surely  may  provide  against  inviting  violations  of  the  lawT,  and 
for  that  purpose  withhold  all  benefit  from  its  violators. 

It  is  objected  that  it  is  left  to  the  discretion  of  the  board  to  determine 
whether  ten  years'  practice,  instead  of  a  diploma,  shall  admit  one  to  examination. 
On  the  score  of  expediency,  some  question  might  be  made  upon  it.  But  the  legis- 
lature might  have  left  that  provision  out  altogether,  and  made  no  exception  to 
the  requirement  that  an  applicant  for  examination  should  have  a  diploma.  The 
court  does  not  see  that  any  question  can  be  made  of  the  power  to  fix  the  period  of 
ten  years,  nor  of  the  power  to  leave  it  for  the  board  to  determine  in  each  particu- 
lar case  whether  the  extent  and  character  of  the  applicant's  practice  during  the 
period  has  been  such  as  to  be  equal,  as  evidence  of  his  qualifications,  to  the  posses- 
sion of  a  diploma. 

It  is  claimed  that  section  7  shows  the  law  to  be  an  arbitrary  measure  for  the 
benefit  of  dentists,  by  giving  them  a  monopoly  to  practice  a  branch  of  surgery 
which  has  heretofore  been  largely  carried  on  by  regular  physicians  and  surgeons. 
It  was  proper,  in  order  to  give  precision  to  the  law,  to  define  what  was  meant  by 
practicing  dentistry.  It  is  not  to  be  supposed  the  legislature  intended  to  enlarge 
the  sphere  of  the  profession.  The  act  could  hardly  be  so  construed  as  to  limit  the 
right  of  the  surgeon  under  his  license.  It  is  claimed,  also,  that  it  discriminates 
between  students  of  dentistry,  by  allowing  them  to  operate  upon  the  teeth  and 
jaws  during  the  period  of  their  enrollment  in  a  dental  college  and  attendance  upon 
a  regular,  uninterrupted  course  in  such  college,  and  excluding  others.  The  purpose 
of  this  provision  of  the  law  is  apparent.  It  is  to  permit  to  actual,  bona  fide 
students  the  benefits  of  practical  work  under  an  instructor.  But,  to  prevent 
evasions  of  the  law  by  persons  practicing  the  profession  under  the  pretense  of 
being  students,  the  act  very  properly  defines  who  shall  be  regarded  as  students, 
within  the  clause  allowing  them  to  perform  operations,  or  parts  of  operations.  It 
is  open  to  every  student  to  bring  himself  within  the  definition. 

The  interpretation  of  the  clause  under  consideration,  upon  which  appellant 
argues  that  it  was  intended  to  prefer  schools  of  dentistry  within  the  state,  as 


364 

against  those  out  of  it,  is  too  narrow.  There  is  no  reason  why  a  student  in  such 
a  school  in  another  state  may  not,  during  vacation,  pursue  his  studies  here  under 
a  licensed  dentist,  and  be  within  the  meaning  of  the  clause.  By  "regular,  unin- 
terrupted course,"  the  act  does  not  mean  a  course  in  which  there  are  no  vacations, 
such  as  all  schools  have.  The  provisions  and  requirements  of  the  law  are  undoubt- 
edly rigorous.  They  ought  to  be,  in  any  law  aiming  to  protect  the  public  against 
ignorance  and  incompetency  in  so  important  a  profession  as  the  medical  profes- 
sion, in  any  of  its  branches.  The  court  sees  nothing  in  the  provisions  of  this  law 
that  was  not  clearly  inserted  by  the  legislature,  in  good  faith,  to  effect  the  end  in 
view.     The  law  is  valid.    Judgment  affirmed. 


SURGERY  INCLUDED  IN  PRACTICE  OF  MEDICINE 

Stewart  v.  Raab,  55  Minn.  20;  56  N.  W.  256 

1893 

In  this  case  it  was  contended  that  a  person  holding  a  certificate  to  practice 
medicine  could  not  lawfully  practice  surgery  nor  recover  for  surgical  services. 
The  Minnesota  medical  practice  act  of  1887  provides  that  every  person  practicing 
medicine  in  any  of  its  departments  shall  possess  the  qualifications  required  by  the 
act.  The  court  says  that  the  terms  "practice  of  medicine"  in  the  title  of  the  act 
and  "practicing  medicine"  in  the  first  section,  are  used  in  the  sense  in  which  they 
are  generally  understood.  The  practice  of  medicine  embraces  the  art  of  prevent- 
ing, curing  or  alleviating  disease  and  remedying  as  far  as  possible  the  results  of 
violence  and  accidents.  Therapy  is  the  treatment  of  disease  and  surgery  is 
operative  therapy.  A  certificate  which  authorizes  its  possessor  to  practice  medi- 
cine necessarily  authorizes  him  to  practice  surgery.  The  act  does  not  require  a 
certificate  for  each  separate  department  in  medicine.  The  court  holds  as  invalid 
the  argument  that  because  surgery  is  not  specifically  mentioned  that  the  holder  of 
a  certificate  violates  the  law  by  performing  surgical  operations. 


PRACTICING  WITHOUT  LICENSE— STATUTE  CONSTRUED 

State  v.  Oreclson,  96  Minn.  509;  105  N.  W.  188 
1905 

The  Supreme  Court  holds  that  section  7896  of  the  General  Statutes  of  Minne- 
sota of  1894,  imposing  a  fine  or  imprisonment,  or  both,  on  anyone  practicing 
medicine  without  a  license,  is  to  be  liberally  construed,  so  as  reasonably  to 
effectuate  its  purpose,  to  prevent  frauds,  and  to  conserve  the  public  health.  That 
an  unlicensed  person  has  practiced  medicine  is  the  gist  of  the  misdemeanor,  and 
not  a  gratuitous  incident  to  it.  That  such  person  has  for  a  fee  prescribed  any 
drug,  medicine,  or  other  agency  for  the  treatment  of  disease  is  one  kind  of  evidence 
of  guilt,  and  not  the  exclusive  substance  of  the  offense.  The  mere  fact  of  gradua- 
tion from  a  medical  college  does  not  entitle  to  practice  medicine  in  Minnesota. 
The  offense  defined  by  statute  may  be  committed  by  a  graduate  of  a  medical 
college,  as  well  as  by  any  other  person  not  licensed  to  practice  medicine,  who  is 
not  shown  to  be  a  medical  student  practicing  under  the  direction  of  a  preceptor, 
or  not  then  and  there  being  a  physician  or  surgeon  of  the  United  States  Army  or 
Navy. 

The  definition  of  practicing  medicine  given  on  the  trial  of  this  case  was  in 
accordance  with  the  statute.  The  act  is  a  beneficial  one,  and  is  entitled  to  a 
liberal  construction.  Its  purpose  was  not  to  merely  make  prescribing  for  a  fee 
the  offense;  so  that  the  defendant  could  have  practiced  medicine  generally,  could 
have  held  himself  out  to  the  world  as  a  physician  and  surgeon,  could  have 
examined  patients,  and  inferentially  could  have  operated  on  them  as  a  surgeon 
for  pay,  and  yet  would  not  have  been  guilty  of  a  misdemeanor  within  the  meaning 
of  the  act.  On  the  contrary,  its  plain  object  was  to  prevent  the  public  wrong 
of  practicing  medicine  without  a  license. 


365 

The  act  was  not  enacted  for  the  benefit  of  any  profession  or  of  any  school  or 
theory  of  medicine.  It  was  designed  to  secure  the  public  in  whole  and  in  every 
part  from  quacks,  humbugs  and  charlatans  masquerading  under  the  venerable 
and  honorable  titles  of  surgeons,  physicians  and  doctors,  and  to  protect  the 
public  in  a  just  reliance  on  the  one  using  these  titles  as  a  man  of  proper  education 
and  sufficiently  trained  in  the  sciences  involved.  A  just  enforcement  of  that 
act  would  tend  to  prevent  the  most  deplorable  swindling  of  the  ignorant  poor, 
who  can  least  afford  to  pay  for  the  luxury  of  deception,  and  who  are  the  most 
likely  to  be  the  dupes  of  ostensible  practitioners,  whose  competency  has  not  been 
determined  by  law,  and  whose  moral  deficiencies  are  evidenced  by  their  false 
pretenses.  Its  terms  should  be  construed,  so  far  as  reasonably  may  be,  so  as  to 
tend  to  eliminate  the  suffering  of  an  individual  from  the  misuse  of  inert  drugs 
when  potent  ones  are  needed,  and  of  powerful  agencies  productive  of  ill  where 
proper  ones  might  bring  relief  or  effect  a  cure,  so  as  to  avoid  many  evils  of 
malpractice,  and  so  as  to  minimize  the  exposure  of  the  community  at  large  to  the 
spread  of  avoidable  pestilence.  The  act  is  at  once  a  statute  of  frauds  and  a 
health  ordinance. 


LIMITATION   ON   RIGHT   OF  LICENSED   PRACTITIONERS   OF  MEDICINE 
TO  PRACTICE  DENTISTRY 

State  v.  Taylor,  106  Minn,  218;  118  N.  W.  1012 
1908 

The  Supreme  Court  holds,  that  a  person  who  is  licensed  to  "practice  medicine 
and  surgery"  under  the  statutes  of  that  state  can  not  by  virtue  thereof  "practice 
dentistry"  without  securing  a  license  as  a  dentist,  as  required  by  Chapter  117 
of  the  General  Laws  of  Minnesota  of  1907. 

The  defendant  in  this  case  was  a  licensed  physician  and  surgeon  and  claimed 
that  such  license  entitled  him  to  engage  in  the  incidental  practice  of  dentistry  on 
his  own  patients.  He  extracted  two  teeth  for  one  of  his  patients  and  took  an 
impression  in  wax  of  the  mouth  and  cavities.  He  sent  this  impression  to  a 
dental  laboratory,  where  artificial  teeth  were  made  and  returned  to  him,  and  he 
delivered  them  to  his  patient  and  received  a  fee  of  some  $38  for  his  services.  It 
was  conceded  that  he  did  not  hold  a  certificate  from  the  State  Board  of  Dental 
Examiners  authorizing  him  to  practice  dentistry  in  Minnesota,  and  that  what  he 
did  came  within  the  terms  of  the  statute  which  defines  the  practice  of  dentistry. 
He  was  therefore  properly  convicted,  unless  protected  by  his  license  as  a  physician 
and  surgeon. 

The  statute  provides  that  a  person  shall  be  regarded  as  practicing  medicine 
"who  shall  append  the  letters  M.D.  or  M.B.  to  his  name,  or  for  a  fee  prescribe, 
direct  or  recommend  for  the  use  of  any  person  any  drug  or  medicine  or  other 
agency  for  the  treatment  or  relief  of  any  wound,  fracture  or  bodily  injury, 
infirmity  or  other  disease :  Provided  that  this  section  shall  not  apply  to  dentists." 
It  is  true,  as  the  defendant  contended,  that  the  practice  of  medicine  and  surgery 
in  its  broad  and  comprehensive  sense  includes  the  practice  of  dentistry,  which 
"is  medical,  surgical  or  prosthetic.  In  so  far  as  it  is  a  direction  of  medical 
science  to  the  prevention,  modification  or  removal,  by  medicinal  and  hygienic 
remedies,  of  the  causes  and  effects  of  disease  in  the  dental  organs,  it  forms  part 
of  the  physician's  practice,  just  as  does  the  treatment  of  cerebral,  cardiac  or 
pulmonary  diseases.  In  so  far  as  it  is  an  application  of  surgical  skill  to  the 
fractures  or  to  staphylorrhaphy,  it  is  simply  oral  surgery,  involving  only  such 
knowledge  and  skill  in  the  use  of  instruments  as  every  surgeon  must  possess." 
Harris,  Principles  and  Practice  of  Dentistry,  p.  33. 

In  the  absence  of  any  legislative  declaration  to  the  contrary,  a  certificate 
authorizing  the  holder  to  practice  medicine  and  surgery  would  therefore  entitle  him 
to  practice  dentistry.  But  for  .reasons  of  public  policy,  with  which  the  court  has 
no  particular  concern,  the  legislature  adopted  the  policy  of  dividing  the  field 
of  medicine  and  surgery,  and  making  a  separate  profession  of  a  part  thereof. 
It  was  thought  that  men  who  engaged  in  the  treatment  of  diseases  of  the  dental 
organs   should  receive   special   preparation  and  be   specially  licensed  to  practice 


366 

that  particular  branch  or  department  of  medicine  and  surgery.  A  State  Board  of 
Dental  Examiners  was  created  and  authorized  to  determine  who  should  be  licensed 
and  entitled  to  practice  dentistry  in  the  state.  A  department  of  Dental  Surgery 
was  also  established  at  the  university,  with  a  course  of  study,  the  satisfactory 
completion  of  which  would  entitle  the  student  to  a  special  degree  of  Dental  Sur- 
geon. An  examination  of  this  course  shows  that  it  includes  a  considerable  part 
of  the  work  required  in  the  medical  school,  but  it  also  includes  studies  which 
relate  particularly  to  diseases  of  the  dental  organs  and  others  designed  to  insure 
efficiency  in  the  mechanical  work  connected  with  the  treatment. 

The  statute  now  in  force  provides  that:  "No  person  shall  practice  dentistry 
in  the  state  without  having  complied  with  the  provisions  of  this  subdivision. 
.  .  .  Any  person  who  shall  .  .  .  violate  any  provision  of  this  subdivision 
shall  be  guilty  of  a  misdemeanor."  And:  "All  persons  shall  be  said  to  be  prac- 
ticing dentistry  within  the  meaning  of  this  section  .  .  .  who  shall  for  a  fee, 
salary  or  other  reward  paid  or  to  be  paid  either  to  himself  or  to  another  person 
.     .     .     replace  lost  teeth  by  artificial  ones." 

The  legislature  has  thus  denned  both  the  practice  of  medicine  and  the  prac- 
tice of  dentistry,  and  made  of  them  two  distinct  professions.  This  statute  relat- 
ing to  dentistry  makes  no  exception  in  favor  of  one  who  holds  a  certificate 
entitling  him  to  practice  as  a  physician  and  surgeon.  The  court  can  find  no 
implied  exceptions  in  this  statute.  The  words  "no  person"  in  a  criminal  statute, 
are  to  be  given  their  literal  meaning.  From  an  examination  of  the  statutes  of 
other  states  relating  to  the  practice  of  dentistry,  the  court  learns  that  many 
contain  express  exceptions  in  favor  of  physicians  and  surgeons.  Probably  the 
most  of  them  permit  physicians  to  extract  teeth  or  perform  such  other  com- 
paratively simple  work.  In  the  absence  of  any  such  exceptions,  it  must  con- 
clude that  the  legislature  intended  to  restrict  the  scope  of  the  practice  of  the 
physician  and  surgeon,  and  require  him,  if  he  desires  to  practice  dentistry,  to 
obtain  a  license  from  the  State  Board  of  Dental  Examiners  in  addition  to  his 
other  certificate.  What  was  said  in  State  vs.  Vandersluis,  42  Minn.,  129,  to  the 
effect  that  the  statute  then  under  consideration  would  not  limit  the  right  of  a 
surgeon  under  his  license,  was  dicta,  and  is  not  controlling. 

The  conviction  in  this  case  is  affirmed. 


SUFFICIENCY  AND  CONSTRUCTION  OF  STATUTE  AUTHORIZING  BOARD 
TO  REVOKE  LICENSES 

Wolf  v.  State  Board  of  Medical  Examiners,  159  Minn.  360;  123  N.  W.  101 k 

1909 

The  Supreme  Court  says  that  the  complaint  of  the  plaintiff  set  forth  that 
the  board  had  caused  a  notice  to  be  served  on  him  to  appear  before  it  at  a  time 
and  place  stated  and  show  cause  why  he  should  not  have  his  license  to  practice 
medicine  revoked.  The  ground  stated  in  the  notice  was  that  he  had  been  guilty 
of  unprofessional  conduct  in  that  at  divers  times  he  had  entered  into  business 
relations  with  a  certain  medical  institute  and  had  aided  and  abetted  it  in  carry- 
ing on  a  questionable  medical  practice.  The  board,  it  was  alleged,  had  not  the 
capacity,  qualification,  or  power  to  properly  examine,  pass  on,  or  ascertain  the 
facts  as  to  whether  the  plaintiff  had  been  guilty  of  immoral,  dishonorable,  or 
unprofessional  conduct,  or  to  summon,  administer  oaths,  or  compel  the  produc- 
tion of  documentary  evidence;  "the  ethics  of  the  medical  profession  are  vague 
and  shadowy;  there  are  a  variety  of  medical  schools  represented  on  said  board, 
all  differing  in  their  theory  of  ethics  as  well  as  on  their  medical  theories;  .  .  . 
they  do  not  act  under  oath,  and  their  action  is  wholly  unrestrained,  either  by 
judgment,  law,  or  conscience;"  the  board  had  fully  determined  in  advance  to 
revoke  the  license  of  the  plaintiff  without  regard  to  the  facts. 

Section  2296  of  the  Revised  Laws  of  Minnesota  of  1905  provides  in  part  that 
"the  board  may  refuse  to  grant  a  license  to,  or  may  revoke  the  license  of,  any 
person  guilty  of  immoral,  dishonorable,  or  unprofessional  conduct,  but  subject  to 
the  right  of  the  applicant  to  appeal  to  the  governor."  It  is  obvious  that  this 
section  is  incomplete   in   itself.     It   is  equally  certain  that  the   section  must  be 


367 

construed  together  with  other  sections  of  the  Revised  Laws  and  general  principles 
of  law  which  are  applicable.  It  is  not  true,  as  the  complaint  set  forth,  that 
the  board  is  not  required  to  take  oath.  The  subscription  of  an  oath  is  expressly 
required  by  section  2077.  It  is  true  that  no  notice  nor  form  of  notice  is  prescribed 
by  section  2296.  The  gist  of  the  power  to  revoke  necessarily  implies,  however, 
the  ability  on  the  part  of  the  board  to  prescribe  legal  forms.  This  section  does 
not  expressly  confer  on  the  board  power  of  administering  an  oath.  The  deficiency, 
however,  is  fully  supplied  by  section  2682.  The  nature  and  necessary  construc- 
tion of  that  statute  confers  that  power.  It  is  immaterial  that  its  exercise  is 
limited  to  questions  of  fact.  No  witness  could  properly  swear  to  matters  of  law. 
While  it  is  true  that  this  section  provides  that  such  a  board  "shall  have  the 
power  to  administer  such  oaths  as  they  may  deem  necessary  to  the  proper  dis- 
charge of  their  duties,"  it  does  not  provide  that  they  must.  It  was  objected  that 
the  administration  of  an  oath  is  therefore  discretionary.  If  an  instance  were 
presented  in  which,  as  a  matter  of  fact,  the  conclusion  of  the  board  rested  on 
unsworn  testimony,  the  question  involved  in  that  argument  would  be  presented. 
No  such  state  of  facts  was  before  the  court  in  this  case.  The  objection  that  the 
board  has  not  the  power  to  compel  the  production  of  documentary  evidence  is 
equally  untenable.     Section  4655  expressly  confers  the  authority. 

Objection  was  made  to  the  form  of  notice  served  on  the  plaintiff  by  the  board. 
That  notice  recited  that  it  had  been  made  to  appear  to  said  board  that  he  had 
been  guilty  of  unprofessional  conduct.  This  he  said  demonstrated  the  prejudge- 
ment by  the  board  of  the  merits  of  the  case.  Of  this  notice  the  trial  court  said: 
"From  a  lawyer's  standpoint,  the  language  employed  (in  the  notice)  might  be 
improved,  but  it  is  simply  a  citation  to  answer  before  the  board  certain  charges 
touching  the  professional  and  possibly  the  moral  conduct  of  the  plaintiff."  This 
the  supreme  court  thinks  was  the  logical  and  proper  construction.  The  notice 
was  infelicitous,  but  not  legally  ineffective. 

The  constitutionality  of  the  statute  was  attacked.  This  proceeding  was  com- 
menced under  the  statute  as  it  existed  prior  to  the  amendment  thereof  by  chapter 
474  of  the  General  Laws  of  1909;  but  it  is  clear  that  subsequent  proceedings  must 
conform  to  the  statute  as  thus  amended.  The  principal  objection  to  the  old 
statute  was  that  it  failed  to  provide  a  physician  proceeded  against  for  removal 
with  an  opportunity  to  review  a  possible  removal  before  some  tribunal  authorized 
to  hear  and  protect  his  rights,  and  hence  deprived  him  of  his  liberty  and  property 
without  due  process  of  law.  The  new  statute  expressly  provides  for  an  appeal 
to  the  district  court  of  the  proper  county  on  questions  of  law  and  fact,  and  thus 
answers  every  requirement  of  due  process  of  law.  It  was  intended  to  obviate  the 
constitutional  objection  of  the  old  statute.  As  it  will  govern  further  proceedings 
herein,  it  is  unnecessary  to  determine  the  validity  of  the  old  statute.  It  is  to 
be  noted  that  the  definition  of  the  offense  against  professional  propriety  is  in  no 
wise  altered.  The  change  is  one  of  procedure  alone,  and  secures  to  the  person 
proceeded  against  all  his  constitutional  rights.  The  ability  of  the  legislature  to 
effect  such  change  is  beyond  question.  If  the  plaintiff  should  be  removed,  he 
would  then  have  the  right  to  review  all  proper  questions  on  appeal.  No  adequate 
reason  appears  for  granting  him  an  injunction  enjoining  the  board  from  pro- 
ceeding further  in  the  matter. 


WANT  OF  LICENSE  BARS  RECOVERY  OF  FEE 

Bohn  v.  Lowery,  77  Miss.  424;  21  So.  604 

1900 

Action  by  H.  R.  Bohn  against  R.  J.  Lowry  for  professional  services.  From  a 
judgment  in  favor  of  defendant,  plaintiff  appeals.  The  defense  set  up  was  that 
appellant  had  not  been  examined  and  had  not  obtained  license  to  practice  med- 
icine in  the  state  of  Mississippi,  as  required  by  law.  At  the  trial  in  the  court 
below,  appellant  testified  that  by  profession  he  was  a  physician;  that  he  had 
practiced  medicine  seven  years;  that  he  was  a  graduate  of  Tulane  University  and 
of  the  Charity  Hospital  of  New  Orleans,  La.;  that  he  had  not  been  examined 
and  had  not  received  a  license  from  the  state  board  of  health  to  practice  as  a 
physician,  but  that  he  had  applied  for  and  received  a  temporary  license  from  the 


368 

board  on  the  3d  day  of  June,  1897;  that  his  temporary-  license  expired  in  April, 
1898;  that  he  did  not  go  before  the  board  of  examiners  at  the  April  meeting 
because  he  was  sick.  The  deposition  of  Dr.  J.  F.  Hunter,  secretary  of  the  state 
board  of  health,  and  executive  officer  of  said  board,  was  introduced  in  evidence, 
and  shows  that  the  temporary  license  granted  appellant  in  June,  1897,  expired  on 
May  10,  1898.  The  trial  resulted  in  a  verdict  and  judgment  for  defendant,  and 
plaintiff  appeals. 

The  court  says  that  by  the  common  law  a  contract  founded  upon  an  illegal 
consideration,  or  one  made  against  public  policy,  is  void,  and  no  action  can  be 
maintained  thereon;  and  where  the  doing  of  an  act  is  prohibited  by  legislative 
authority  under  a  penalty  it  cannot  constitute  a  consideration  to  support  a 
contract.  The  illegality,  whether  arising  by  the  common  law  or  from  the  statute, 
affects  the  act  or  contract  with  like  infirmity.  An  exception  to  this  rule  of  law 
prevails  where  the  penalty  is  imposed  on  the  offending  party  merely  for  the 
benefit  of  the  revenue,  and  not  to  prohibit  the  act  done,  or  avoid  the  contract. 
After  quoting  authorities  the  court  says:  That  Dr.  Bohn  was  a  graduate  of 
Tulane  University,  and  a  skilful  physician,  is  not  to  the  purpose.  He  had  no 
license  when  he  performed  the  services  upon  which  the  action  is  founded.  His 
temporary  license  had  expired  in  May,  1898,  and  he  was  disabled  by  sickness 
from  obtaining  a  permanent  license  at  the  May  meeting  of  the  board,  which, 
doubtless,  he  would  have  done,  if  he  had  been  before  it;  but  that  was  his  mis- 
fortune. Looking  back,  it  seems  that  it  would  have  been  a  reasonable  and  wise 
provision  of  law  that  it  should  have  authorized  the  board  of  health  to  extend  a 
temporary  license  for  inability  to  attend  a  meeting  of  the  board  on  account  of 
sickness  or  other  adequate  cause.  But  it  is  for  the  legislature  to  insert  such 
provision,  and  not  for  the  court  to  ingraft  it.     Affirmed. 


MISSISSIPPI  MEDICAL  PRACTICE  ACT  AND  OSTEOPATHY 

Hayden  v.  State,  81  Miss.  291;  33  So.  653;  95  Am.  St.  Rep.  471 

1903 

Hayden  was  indicted  for  practicing  as  physician  without  first  having  been 
examined  and  obtained  a  license  so  to  do.  The  admitted  facts  were  that  he  was 
a  graduate  of  a  school  of  osteopathy  and  practiced  it.  In  treating  diseases,  and 
in  his  treatment  of  the  witnesses  for  the  state  case  he  did  not  use  any  drug  or 
medicine,  but  his  treatment  consisted  of  manipulating  scientifically  the  limbs, 
muscles,  ligaments  and  bones  which  were  pressing  on  the  nerves  of  the  blood- 
supply.  This  treatment  was  had  so  that  Nature  would  have  free  action.  In 
his  treatment  of  diseases  or  pains  he  was  confined  solely  to  his  manipulation  as 
above  described.  For  said  services  to  said  witnesses  he  received  pay.  The  wit- 
nesses were  being  treated  for  rheumatism,  and  claimed  that  they  had  entirely 
recovered  as  a  result  of  that  treatment.  The  circuit  judge  instructed  the  jury 
that,  if  they  believed  the  admitted  facts,  they  should  convict  the  party.  This  they 
did,  and  thereon  the  judge  imposed  a  fine  of  $20  on  him.  The  Supreme  Court 
says  that  the  sole  question  was  whether,  under  Chapter  68,  Acts  1896,  an  osteo- 
path is  required  to  be  examined  and  licensed  for  the  practice  of  his  branch  of 
the  healing  art.  The  act  of  1896  provides:  "That  the  practice  of  medicine  shall 
mean  to  suggest,  recommend,  prescribe  or  direct  for  the  use  of  any  person,  any 
drug,  medicine,  appliance  or  agency,  whether  material  or  not  material,  for  the 
cure,  relief  or  palliation  of  any  ailment  or  disease  of  the  mind  or  body,  or  for  the 
cure  or  relief  of  any  wound  or  fracture  or  other  bodily  injury  or  deformity  or  the 
practice  of  obstetrics  or  midwifery,  after  having  received,  or  with  the  intent  of 
receiving  therefore,  either  directly  or  indirectly,  any  bonus,  gift,  profit  or  com- 
pensation." It  was  perfectly  manifest,  the  court  thinks,  from  the  agreed  state- 
ment of  facts,  that  the  party  used  neither  drug  nor  medicine,  as  meant  by  the 
act.  It  was  equally  manifest  that  the  legislature,  by  the  use  of  the  words 
"appliance  and  agency,"  did  not  intend  to  include  such  treatment  as  he  gave 
the  state  witnesses.  Continuing,  it  says  that  its  attention  has  been  called  to  no 
statement  of  osteopathic  treatment  in  all  the  literature  on  this  subject  which 
characterizes  the  treatment  of  an  osteopath   of  his  patient   as  an  appliance  or 


369 

agency.  There  is  an  incongruity  in  such  application  of  such  words.  Osteopaths 
themselves  do  not  speak  of  their  manipulation  of  the  nerve-.  Ligaments,  bones 
and  other  parts  of  the  human  body  as  being  agencies  or  appliances  of  any  BOrt 
or  in  any  sense.  In  any  strict  and  proper  use  of  such  words  they  can  not  be  so 
denominated.  If  one  not  an  osteopath  directs  a  blow  at  their  art  it  is  becoming 
that  he  use  a  term  of  description  not  to  be  mistaken.  The  Supreme  Court  con- 
cludes that  the  act  of  March  19,  189G,  was  not  intended  to  regulate  the  practice 
of  osteopathy  in  Mississippi.  It  says  that  the  course  of  study  and  examination 
prescribed  in  the  law  of  that  state  on  this  subject  seems  to  mark  it  out  as 
curriculum  of  the  allopaths.  It  at  least  suits  them  in  many  respects,  but  its 
chemistry  and  materia  medica  are  not  specially  adapted  to  assist  the  practice 
of  osteopathy.  They  make  no  use  of  the  immense  learning  contained  on  these  sub- 
jects, so  highly  valued  by  the  regular  physician.  It  appears  to  the  court  that 
the  Mississippi  legislation  on  the  subject  of  the  practice  of  medicine  has  been 
framed  by  the  allopaths  to  suit  their  views  of  the  medical  art,  and  with  the 
laudable  design  of  excluding  from  the  practice  the  unskilful  and  the  ignorant; 
and  it  was  not  intended  to  set  up  a  universal  standard  of  therapeutics,  from 
which  none  could  depart.  Courts  in  other  jurisdictions  where  similar  statutes 
prevail  have  led  the  way  for  the  decision  in  this  case.  The  court  says  that 
while  its  own  views  of  the  subject  would  probably  have  led  it  to  the  conclusion 
it  has  reached,  yet,  if  the  case  had  been  otherwise,  it  should  have  felt  itself 
strongly  constrained  by  the  authority  and  reasoning  contained  in  them.  It  adds 
that  a  wise  legislature  some  time  in  the  future  will  doubtless  make  suitable 
regulations  for  the  practice  of  osteopathy,  so  as  to  exclude  the  ignorant  and 
unskilful  practitioners  of  the  art  among  them.  The  world  needs  .and  may 
demand  that  nothing  good  or  wholesome  shall  be  denied  from  its  use  and 
enjoyment. 


EXCEPTION  AS  TO   PRIOR  PRACTICE   VALID 

State  v.  Hathmcmj,  115  Mo.  36;  21  8.  W.  1081 
1893 

J.  N.  Hathaway  was  convicted  for  practicing  medicine  without  a  certificate, 
and  appeals.     Affirmed. 

This  proceeding  charges  that  the  defendant  did  unlawfully  and  wilfully  engage 
in  the  practice  of  medicine  by  publicly  professing  to  be  a  physician  and  without 
being  authorized  to  practice. 

The  defendant  attacks  the  constitutionality  of  the  act  of  the  legislature 
approved  April  2,  1883,  entitled  "An  act  to  regulate  the  practice  of  medicine  and 
surgery  in  the  state  of  Missouri,"  on  the  ground  that  it  discriminates  between 
practitioners  of  medicine,  by  conferring  special  privileges  upon  certain  physicians, 
exempting  them  from  the  obligations  and  burdens  imposed  upon  others  engaged 
in  the  same  profession,  and  is  therefore  class  legislation,  and  because,  in  contra- 
vention of  article  3  and  section  1  of  article  6  of  the  constitution  of  Missouri,  it 
confers  on  the  board  of  health  judicial  powers,  which  can  only  be  exercised  by  the 
courts  of  this  state.  This  act  has  twice  before  been  before  this  court.  In  neither 
of  those  cases  was  the  validity  of  the  law  challenged  as  obnoxious  to  the  organic 
law  of  the  state.  Considering  the  objection  that  this  act  invests  the  board  of 
health  with  judicial  powers,  the  court  thinks  this  is  a  clear  misapprehension  of 
this  law.  xnis  statute  is  the  exercise  by  the  legislature  of  its  prerogative  to  pass 
all  needful  laws  for  the  preservation  of  the  health  of  the  people  of  this  common- 
wealth. Its  right  to  regulate  the  practice  of  those  trades  and  professions  requir- 
ing professional  skill  and  learning  can  no  longer  be  doubted.  It  is  an  acknowl- 
edged part  of  that  undefined  power,  inherent  in  the  state,  and  denominated  "police 
power."  The  right  to  require  examination  and  a  certain  amount  of  technical 
knowledge  has  been  exercised  by  the  several  states,  not  only  in  the  profession  of 
medicine,  but  in  the  law,  and  pharmacy,  and  extends  to  engineers,  pilots,  and  the 
like,  and  has  heen  sustained  in  the  highest  courts  of  the  land.  The  legislature,  in 
the  interest  of  society,  and  to  prevent  the  imposition  of  quacks,  adventurers,  and 
charlatans  upon  the  ignorant  and  credulous,  has  the  power  to  prescribe  the  qualifi- 


370 

cations  of  those  whom  the  state  permits  to  practice  medicine.  To  ascertain 
whether  they  come  to  the  standard  the  state  prescribes,  it  is  within  the  power 
of  the  legislature  to  provide  for  a  board  of  experts,  who  shall  conduct  the  exami- 
nations. All  this  is  within  the  scope  of  the  legislative  branch  of  the  government. 
And  the  objection  now  made  that  because  this  law  vests  in  this  board  the  power 
to  examine,  not  only  into  the  literary  and  technical  acquirements  of  the  applicant, 
but  also  into  his  moral  character,  it  is  a  grant  of  judicial  power,  is  without  force. 
The  act  being  otherwise  a  valid  exercise  of  the  legislative  power,  does  the  pro- 
vision "that  the  provisions  of  this  act  shall  not  apply  to  those  that  have  been 
practicing  medicine  five  years  in  this  state,"  render  it  unequal,  and  discriminating 
between  physicians,  and  therefore  unconstitutional?  This  objection  has  been  made 
so  often  to  statutes  identical  in  principles  with  ours,  and  has,  with  one  exception, 
been  so  uniformly  overruled,  that  the  court  forbears  any  extended  discussion  of  it. 
To  be  obnoxious  to  the  objection  that  it  is  class  legislation,  there  must  be  a  dis- 
crimination between  persons  of  the  same  class.  It  is  evident  that  the  legislature 
regarded  those  physicians  who  had  lawfully  exercised  their  profession  in  this 
state  for  five  years  before  the  act  was  passed  as  belonging  to  a  different  class  from 
those  who  had  never  practiced  in  this  state,  and  the  distinction  is  one  that  com- 
mends itself  to  our  ideas  of  justice.  The  mere  fact  that  the  state  saw  fit  to  adopt 
a  more  rigid  rule  for  the  practice  of  medicine,  as  to  those  who  should  hereafter 
desire  to  follow  that  vocation,  without  applying  it  to  those  who  had  for  years  fol- 
lowed it,  works  no  injustice  to  the  new  applicant.  It  is  a  well-settled  rule  that 
statutes  should  be  construed  to  act  prospectively  only,  unless  the  intent  of  the 
legislature  that  they  should  operate  retrospectively  is  clearly  expressed,  and  so  as 
to  admit  of  no  other  reasonable  construction;  and  giving  the  act  in  question  this 
construction,  it  would  apply,  from  the  time  of  its  taking  effect,  to  all  physicians 
who  might  desire  to  practice  in  this  state,  and  under  this  view  is  certainly  not 
open  to  the  charge  of  class  legislation.  The  point  is  not  well  taken,  and  must  be 
overruled.    Ihe  judgment  is  affirmed.    All  concur. 


ARBITEAEY  CLASSIFICATION  OF  COLLEGE  OBJECTIONABLE 

State  ex  rel.  Johnson  v.  Lutz  et  al,  136  Mo.  633;  38  8.  W.  323 

1896 

This  is  a  mandamus  proceeding  to  compel  the  State  Board  of  Health  to  issue 
a  certificate  authorizing  the  plaintiff  to  practice  medicine  and  surgery.  The  plain- 
tiff states  that  he  graduated  from  the  Physio-Medical  College  of  Indiana  on  March 
18,  1896,  and  appeared  before  the  Missouri  board  in  July  1896,  presented  his 
diploma,  tendered  the  fee  and  made  application  for  a  certificate  which  was  refused 
on  the  ground  that  the  college  issuing  the  diploma  was  not,  in  the  judgment  of 
the  board,  a  medical  institution  in  good  standing  within  the  meaning  of  the 
statutes,  and  that  the  board  had  mailed  a  copy  of  a  resolution  passed  by  the  board 
to  each  medical  college  in  the  United  States  requiring  them  to  furnish  on  or  before 
Jan.  1,  1896  a  list  of  their  respective  matriculates  and  the  basis  of  their  matricu- 
lation and  that  the  Physio-Medical  College  of  Indiana  had  not  complied  with  this 
order.  The  record  shows  that  on  April  19,  1894,  the  board  of  health  adopted  a 
rule  prescribing  certain  conditions  upon  which  medical  students  might  be 
admitted  and  requiring  the  secretary  of  the  board  to  notify  all  medical  colleges 
that  this  rule  would  go  into  effect  on  Feb.  1,  1895,  and  that  on  Oct.  28,  1895,  the 
board  passed  another  resolution  requiring  all  medical  colleges  to  report  on  or 
before  January  1  of  each  year  a  complete  list  of  all  its  matriculates,  together  with 
the  basis  of  matriculation.  On  Jan.  6,  1896,  the  board  passed  another  resolution, 
instructing  its  secretary  to  refuse  recognition  of  the  diplomas  of  any  medical  col- 
lege which  had  not  complied  with  the  conditions  imposed  upon  colleges  by  the 
resolution  and  ordering  copies  of  the  Missouri  Sanitarian  for  November,  1895, 
sent  to  all  the  medical  colleges  in  the  United  States.  It  was  shown  by  the  secre- 
tary of  the  board  that  he  had  sent  copies  to  all  medical  colleges  including  the 
Physio-Medical  College  of  Indiana  but  he  did  not  state  when  or  how  they  were 
sent,  whether  by  mail  or  otherwise.  Dr.  Lutz,  the  president  of  the  board,  testified 
that  in  the  latter  part  of  October,  1895,  he  sent  a  printed  notice  of  the  require- 


371 

ments  of  the  board  to  every  medical  college  in  the  United  States.  Dr.  Bedford 
testified  that  he  had  been  secretary  of  the  faculty  of  the  Physio-Medical  College 
for  ten  or  twelve  years  and  that  at  no  time  prior  to  1896  was  there  received  by 
the  college,  or  by  him,  any  communication  from  the  State  Board  of  Health  of  Mis- 
souri, but  that  on  the  24th  day  of  June,  189G,  he  received  through  the  mail  a  slip 
of  printed  matter  purporting  to  be  the  minimum  requirements  of  the  State  Board 
of  Health  of  Missouri.  The  envelope  was  stamped  "St.  Louis,  June  23,"  and  bore 
the  stamp  of  the  postoffice  at  Indianapolis  which  shows  that  it  reached  there  at 
4  a.  m.,  June  24,  1896.  While  the  evidence  on  the  part  of  the  state  board  tended 
to  show  that  the  notice  was  sent  by  the  board  to  the  Physio-Medical  College  in 
1895,  the  witnesses  testified  from  memory  only,  and  were  indefinite  as  to  the  exact 
time,  while  the  secretary  of  the  faculty  of  the  medical  college  testified  positively 
that  no  such  notice  was  received  until  the  24th  day  of  June,  1896,  and  in  corrobo- 
ration produced  the  notice  and  the  envelope.  The  Supreme  Court  holds  that  the 
weight  of  evidence  was  in  favor  of  the  relator  and  that  the  notice  was  not  sent 
to  the  college  until  June  23,  1896,  five  days  after  the  relator  had  graduated,  and 
that  he  was,  therefore,  in  no  way  affected  by  the  failure  of  the  college  to  comply 
with  the  rulings  of  the  board.  If  the  certificate  had  been  refused  on  the  ground 
that  the  Physio-Medical  College  was  not  in  good  standing,  mandamus  would  not 
lie  to  compel  the  board  to  issue  a  certificate  because  that  question  is,  under  the 
statute,  within  the  judgment  and  discretion  of  the  board  to  determine,  but  the 
certificate  was  refused  upon  entirely  different  grounds  which  did  not  involve 
matters  of  discretion  or  of  judgment.  While  the  members  of  the  medical  board 
are  to  be  commended  for  their  efforts  to  elevate  the  standard  of  medicine  and  sur- 
gery, they  must  keep  within  the  limits  of  the  statute  creating  the  board.  A 
peremptory  writ  was  awarded. 


SEEING  PATIENTS  IN  ONE  STATE  AND  SENDING  MEDICINE  FROM  AN- 
OTHER—NO VESTED  RIGHT 

State  v.  Davis,  19 k  Mo.  J,S5;  92  8.  W.  J,8',;  h  L.  R.  A.   (N.  8.)   1023 

1906 

The  Supreme  Court  says  that  the  defendant  had  a  room  at  the  hotel  in  Mem- 
phis, Scotland  county,  Mo.,  professed  to  be  a  physician,  and  held  himself  out  as 
such.  One  Hoover  applied  to  him  at  the  hotel  as  a  physician  for  treatment.  He 
diagnosed  his  case  in  the  usual  and  ordinary  way  of  practicing  physicians,  and 
prescribed  remedies.  His  prescription  for  medicine,  however,  was  in  the  form  of 
a  blank,  which  was  required  to  be  sent  to  the  state  of  Illinois,  and  then  the 
defendant  would  send  the  bottles  of  medicine  to  Hoover  by  express  from  Warsaw, 
111.  Hoover  took  the  medicine  according  to  the  defendant's  directions,  and  accord- 
ing to  the  directions  on  the  bottle.  He  paid  the  defendant  at  the  rate  of  $5  per 
month  for  such  treatment.  The  payments  were  made  to  the  defendant  and  the 
defendant  would  come  to  the  hotel  for  the  purpose  of  seeing  his  patient,  Hoover, 
the  first  Monday  in  every  month.  This,  in  the  court's  opinion,  was  clearly  prac- 
ticing medicine  in  Missouri  as  contemplated  by  the  statute.  The  mere  fact  that 
the  medicine  was  sent  from  Illinois  did  not  in  any  way  alter  the  construction 
placed  on  his  acts,  that  he  was  a  practicing  physician  in  Missouri. 

The  practice  of  medicine,  as  contemplated  by  the  provisions  of  the  statute  cov- 
ering that  subject,  the  court  says,  may  consist  only  of  the  examination  of  a 
patient,  diagnosing  the  cause  of  the  trouble  complained  of,  or,  by  one  professing 
to  be  a  physician,  seeing  the  patient  at  stated  intervals,  and  the  indication  and 
prescribing  of  remedies  to  be  applied,  and  the  acceptance  of  pay  for  such  services. 
The  mere  fact  that  the  remedies  indicated  and  prescribed  are  sent  from  another 
state  does  not  negative  the  idea  that  the  defendant  was  practicing  medicine  or 
attempting  to  practice  medicine  in  Missouri.  It  would  not  be  an  uncommon  occur- 
rence for  a  regular  practicing  physician  of  Missouri  to  examine  his  patients,  diag- 
nose the  cause  of  their  illness,  and  then  say  to  them,  "The  remedies  I  indicate  and 
prescribe  you  must  obtain  from  the  state  of  New  York."  This  is  not  a  case  where 
the  physician  does  not  come  to  the  state  and  undertake  to  secure  patients,  but 
simply  furnishes  blanks,  which  are  sent  to  him  in  another  state,  and  he  sends  the 


372 

medicine  in  accordance  with  the  requests ;  but  here  we  have  a  person  coming  to 
Missouri,  iiolding  himself  out  as  a  physician,  has  patients  visit  him,  examines 
them,  advises  them  as  to  the  nature  and  cause  of  their  trouble,  indicates  the  reme- 
dies to  be  applied,  and  accepts  pay  for  such  services.  The  bare  statement  of  the 
two  classes  of  cases  makes  manifest  the  distinction  between  them.  The  proof  in 
this  cause  was  amply  sufficient  to  show  that  the  defendant  was  undertaking  to 
practice  his  profession  in  Scotland  county,  Mo.,  and,  it  being  conceded  that  he  was 
not  a  regularly  registered  physician  in  Missouri,  and  had  no  license  from  the 
State  Board  of  Health  to  practice  medicine,  the  testimony  fully  warranted  the  con- 
clusion reached  by  the  jury  in  their  verdict  finding  the  defendant  guilty  as 
charged,  of  practicing  medicine  without  a  license. 

Moreover,  the  court  says  that  it  was  clearly  manifest  that  the  defendant  had 
no  vested  right  to  practice  medicine  in  Missouri  by  virtue  of  his  former  practice 
there  in  1857.  On  returning  to  the  state  to  practice  his  profession,  his  qualifica- 
tions, fitness,  and  skill  to  do  so  must  be  judged  by  the  law  in  force  at  the  time 
he  so  returns,  and  before  he  will  be  authorized  to  engage  in  the  practice  of  his 
profession  and  reap  the  rewards  from  such  practice,  there  is  no  reason  why  he 
should  not  comply  with  the  conditions  imposed  on  him  by  the  law  in  force  at  the 
time  he  so  undertakes  to  engage  in  the  practice. 

It  is  but  common  knowledge  that  the  people  who  have  ill  health  or  whose 
families  are  troubled  with  disease  are  more  easily  and  can  be  more  readily 
imposed  on  by  persons  who  represent  themselves  as  physicians,  claiming  that  they 
can  give  them  permanent  relief,  than  any  other  class;  and  it  may  be  added  that 
intelligence  is  no  protection  from  impositions  along  that  line,  for,  when  a  man  is 
sick  or  his  family  ill,  whether  he  be  intelligent  or  ignorant,  they  readily  give  an 
attentive  ear  to  any  sort  of  a  doctor  who  claims  that  he  can  give  them  relief,  and 
are  at  all  times  ready  to  purchase  and  swallow  all  sorts  of  nostrums  because  they 
are  recommended  by  some  one  who  claims  to  be  a  physician.  The  prime  object  of 
the  Missouri  law  on  the  subject  of  the  practice  of  medicine  is  the  protection  of 
the  people  from  the  impositions  herein  indicated  by  persons  who  are  not  suf- 
ficiently skilled  in  the  profession  to  authorize  them  to  properly  administer  medi- 
cine, and  therefore  relieve  the  afflicted.  And,  again,  the  court  says  that  it  is 
apparent  that  the  general  assembly  of  Missouri,  in  the  enactment  of  the  provisions 
of  law  regulating  the  practice  of  medicine  and  surgery  in  Missouri,  intended  to 
fix  a  standard  of  fitness,  skill  and  qualification  which  would  authorize  the  practice 
of  that  profession.  This  law  does  not  undertake  to  deprive  any  person  of  a  vested 
right,  for  there  can  be  no  such  thing  as  a  vested  right  in  the  practice  of  medicine. 
It  does  not  undertake  to  suppress  or  prohibit  the  practice  of  medicine  or  surgery 
nor  to  prohibit  any  particular  person  from  practicing  as  a  physician  or  surgeon, 
but  it  simply  undertakes  to  require  the  necessary  and  essential  qualifications  for 
that  purpose. 


NATURE    OF    STATE    BOARD    OF    HEALTH    AND    ITS    ACTS— POWERS- 
REVOCATION   OF    CERTIFICATE 

State  ex  rel.  McAnally  v.  Goodier  et  al.,  195  Mo.  551;  93  8.  W.  928 

1906 
The  relator  (McAnally)  asked  for  a  writ  of  prohibition  to  prevent  the  State 
Board  of  Health  proceeding  in  an  investigation  of  charges  of  alleged  improper 
conduct  and  revoking  a  certificate  to  practice  medicine  and  surgery  issued  to  him 
in  1883.  Under  the  act  of  1883  he  was  not  required  to  have  a  certificate  from  the 
State  Board  of  Health  to  entitle  him  to  practice  medicine,  because  he  had  been 
practicing  for  a  period  more  than  five  years  before  the  law  was  enacted,  and  he . 
maintained  that  the  board  had  no  right  to  revoke  the  certificate  issued  to  him, 
even  if  it  should  find  after  investigation  that  he  was  morally  unworthy  to  exercise 
the  high  calling,  because  he  said  that  the  board  had  no  right  to  issue  it  in  the 
first  place.  But  a  complaint  of  that  kind  does  not  make  a  very  persuasive  appeal 
for  a  writ  which,  after  all,  is  within  the  sound  discretion  of  the  court  to  issue  or 
refuse  independent  of  strict  technicality,  as  the  very  right  and  justice  of  the  case 
require.  The  certificate  implied  not  only  that  the  holder  is  learned  in  the  science, 
but  that  he  is,  from  a  moral  or  ethical  standpoint,  worthy  to  be  trusted.     In  this 


373 

case,  if  the  board,  on  investigation,  should  find  the  relator  guilty  of  the  charges 

preferred,  the  utmost  it  could  do  would  be  to  cancel  the  certificate  that  it  had 
itself  issued,  leaving  the  relator  in  full  possession  of  what  he  said  the  law  gave 
him  independent  of  the  board — that  is,  the  right  to  practice  medicine  on  his  own 
merits;  but  it  would  not  leave  him  armed  with  his  certificate  of  good  character 
from  the  State  Board  of  Health.  The  relator  had  no  right  to  hold  that  certificate 
if  he  was  unworthy  of  the  confidence  it  invited. 

The  relator  complained  that  the  board  was  going  to  try  him  without  exercising 
compulsory  process  to  bring  before  it  the  witnesses  he  needed  for  his  defense.  But 
the  State  Board  of  Health  is  not  a  court — is  not  a  judicial  tribunal.  It  can  issue 
no  writ.  It  can  try  no  case — render  no  judgment.  It  is  merely  a  governmental 
agency,  exercising  ministerial  functions.  It  may  investigate  and  satisfy  itself 
from  such  sources  of  information  as  may  be  attainable  as  to  the  truth  or  falsity 
of  charges  of  misconduct  against  one  holding  one  of  its  certificates,  but  its  investi- 
gation does  not  take  on  the  form  or  character  of  a  judicial  trial.  The  law  does 
not  contemplate  that  the  technical  rule  of  evidence  applicable  to  a  judicial  trial 
will  be  strictly  followed,  or  that  compulsory  attendance  of  witnesses  will  be  made. 
It  contemplates  that  a  plain,  honest,  common-sense  investigation  shall  be  made, 
with  good  faith  and  as  thorough  as  may  be  with  the  light  of  such  evidence  on 
either  side  as  is  obtainable  without  process  and  with  the  means  at  hand,  much  like 
the  investigation  that  fair-minded,  intelligent  men  would  make  in  their  own  busi- 
ness concerning  the  alleged  misconduct  of  one  of  their  employes,  with  this  dif- 
ference only,  that  the  board  can  not  revoke  the  license  except  for  cause  and  after 
the  accused  has  had  an  opportunity  to  be  heard. 

The  statute  says  the  board  may  refuse  to  issue  the  certificate,  or  may  revoke 
it  after  it  has  been  issued,  if  the  man  is  unworthy.  This  implies  that  the  board 
may  have  some  information  of  misconduct  of  an  applicant  which  would  justify  a 
refusal  to  issue  the  certificate,  or,  after  the  certificate  is  issued,  that  would  justify 
its  recall,  and  in  either  case  the  board  is  authorized  to  act,  "after  giving  the 
accused  an  opportunity  to  be  heard."  Those  are  the  only  words  that  suggest  a 
trial,  and  they  fall  far  short  of  a  judicial  trial.  To  guard  and  protect  the  health 
and  welfare  of  its  people  the  state  must  have  its  ministerial  agents  or  officers  and 
entrust  them  with  power.  If  every  administrative  act  that  looks  to  the  enforce- 
ment of  the  law  should  be  required  to  be  reduced  to  the  compass  of  a  lawsuit  and 
be  put  into  effect  only  after  a  court  had  at  the  end  of  a  formal  trial  stamped  its 
judgment  on  it,  the  government  would  make  slow  progress.  There  must  be  trust 
reposed  somewhere  and  the  power  to  execute  the  law.  The  General  Assembly  has 
taken  great  care  to  secure  trustworthy  men  to  perform  the  duties  that  are  devolved 
on  the  State  Board  of  Health.  The  duties  of  the  board  are  of  an  administrative 
or  ministerial  character,  and,  therefore,  as  long  as  its  acts  are  within  the  scope  of 
the  exercise  of  a  reasonable  discretion  it  is  free  to  act.  If  perchance,  through  a 
misunderstanding  of  the  law,  the  board  should  refuse  to  perform  a  given  duty, 
the  writ  of  mandamus  will  right  the  wrong,  but  the  writ  of  prohibition  does  not 
go  against  such  a  body.  It  goes  only  against  a  court  or  a  tribunal  exercising 
judicial  functions. 

In  other  words,  the  court  holds  in  this  case  that  the  State  Board  of  Health  is 
not  a  judicial  body;  that  it  has  the  power  to  revoke  a  license  or  certificate  issued 
by  it.  if,  after  investigation,  in  which  the  licensee  is  afforded  an  opportunity  to  be 
heard,  it  is  satisfied  that  he  has  been  guilty  of  unprofessional  or  dishonorable 
conduct;  and  that,  in  conducting  such  investigation  (or  "trial,"  if  that  term  is 
preferred ) ,  it  is  not  assuming  to  exercise  a  judicial  function.  Therefore  a  writ  of 
prohibition  does  not  lie  to  prevent  the  investigation. 


CONSTITUTIONALITY    OF    PEACTICE    ACT    REQUIRING   DIPLOMA,   ETC. 
State  ex  rel.  Crandall  v.  Mcintosh  et  al.,  205  Mo.  589;  103  S.  W.  1078 

1907 

The  supreme  court  finds  no  legal  fault  with  the  requirement  of  a  diploma  or  of 

an  examination  by  the  board.     It  finds  no  legal  fault  with  the  legislative  theory 

that  it  was  largely  impracticable  for  an  applicant  to  acquire  in  the  first  instance 

suitable  skill  in  technic  and  adequate  professional  knowledge  by  himself  or  in  an 


374 

office.  The  line  has  to  be  drawn  somewhere,  and,  so  long  as  it  was  not  chalked  out 
whimsically  and  arbitrarily  at  an  unreasonable  place,  it  was  well  enough — the 
legislature  having  plenary  power. 

Measurably,  the  same  with  other  reasons  underlie  and  support  the  alternative 
requirement  of  a  certificate  from  a  dental  board  of  another  state.  It  is  apparent 
that  no  scheme  should  overlook  the  fact  that  Missouri  is  but  one  of  many  states 
in  this  union.  Some  comity  must  be  provided  for,  and  no  legislation  could  be 
enacted  so  perfect  as  to  avoid  the  hardships  of  a  hard  case  such  as  within  the 
imagination  or  by  pathesis  of  ingenious   counsel. 

Finally,  it  was  argued,  in  effect,  that  the  limitations  and  classifications 
imposed  by  the  statute  were  not  germane  to  the  subject  matter  of  dentistry. 
That  to  say  a  dentist  shall  not  be  examined  or  licensed  who  holds  no  college 
diploma  or  no  certificate  from  another  dental  board  is  as  unreasonable  as  to  put 
up  the  bars  to  one  who  had  gray  eyes  or  red  hair,  or  who  stood,  say,  5  feet  8 
inches  in  his  socks — all  restrictions  of  that  ilk,  it  was  argued,  are  whimsical, 
unreasonable,  arbitrary,  and  hence  plainly  outside  the  legitimate  province  of 
legislative  control  and  void.  Bvit  is  a  statute  calling  for  a  certificate  from  a 
reputable  dental  college  (or  other  like  voucher  or  safeguard)  attesting  the  bearer 
to  be  proficient  in  the  learning  and  technic  of  his  profession,  obnoxious  to  the 
criticism  that  such  requirement  is  not  germane?    The  court  thinks  not. 


STATE  BOARD  MAY  BE  COMPELLED  AFTER  DECIDING  AGAINST  IT  TO 
ISSUE  LICENSE  TO  PRACTICE 

State  ex  rel.  McCleary  v.  Adcock  et  al,  206  Mo.  550;  105  S.  W.  270;  121  Am. 

St.  B.  681 
1907 

The  supreme  court  says  that  the  only  disputed  question  in  this  case,  to  compel 
the  issuance  to  the  relator  of  a  license  to  practice  medicine,  was  as  to  whether  the 
relator  was  a  matriculant  in  the  school  claimed  prior  to  March  12,  1901.  If  he 
was,  he  was  entitled  to  his  license.  The  act  of  1903  stated  that  it  should  not 
apply  to  any  student  who  had  matriculated  in  a  medical  college  on  or  prior  to 
March  12,  1901,  and  that  it  should  be  the  duty  of  the  said  board  of  health  on 
receiving  a  fee  of  $15  from  said  student  to  issue  to  him  a  license  to  practice 
medicine  when  said  student  presented  a  diploma  from  any  medical  college  of  the 
state.  Under  the  facts  of  this  case,  and  under  this  law,  the  only  thing  for  the 
board  to  do  was  to  rightfully  determine  the  question  as  to  whether  or  not  the 
relator  was  a  matriculant  in  this  school  prior  to  March  12,  1901. 

If  the  board  cannot  act  judicially,  as  held  in  the  Goodier  Case,  this  case 
resolved  itself  into  the  plain  proposition — did  or  did  not  the  conditions  exist? 
If  so,  the  license  must  go.  The  great  weight  of  the  evidence  showed  that  the 
relator  had  matriculated  prior  to  March  12,  1901,  and,  such  being  the  case,  the 
peremptory  writ  of  mandamus  must  go. 

The  court  concludes  by  saying  that  boards  of  this  character,  having  merely 
administrative  and  ministerial  duties  to  perform,  cannot  act  arbitrarily,  nor 
against  the  great  weight  of  the  positive  testimony  on  a  given  question,  and,  if 
they  do  so  act,  there  is  redress  for  the  party  aggrieved  by  an  action  of  this  kind. 


REQUIREMENTS   AND   RIGHTS   OF   APPLICANTS    FOR   EXAMINATION- 
POWER   OF  STATE  BOARD  TO  DETERMINE  WHAT  ARE 
REPUTABLE  MEDICAL  COLLEGES 

State  ex  rel.  Abbott  v.  Adcock  et  al.,  225  Mo.  335;  124  8-  W.  1100 

1910 

The  supreme  court  says  that  a  reading  of  section  1  of  an  act  approved  April  4, 
1907,  shows  that  it  requires  three  things  of  each  applicant  who  desires  to  be 
examined  touching  his  qualifications  to  practice  medicine  and  surgery  in  Missouri : 
First,  that  he  shall  make  application  in  writing  to  the  secretary  of  the  board 


375 

thirty  days  before  the  meeting  thereof;  second,  that  he  furnish  to  the  board  satis- 
factory evidence  of  his  scholastic  qualifications  as  therein  provided  for;  and,  third, 
that  he  shall  also  furnish  to  the  board  satisfactory  evidence  of  having  received  a 
diploma  from  some  reputable  medical  college  of  four  years'  requirements  at  the 
time  of  his  graduation. 

While  the  act  mentioned  does  not  undertake  to  state  what  medical  colleges  are 
or  what  are  not  reputable  within  the  meaning  thereof,  by  clear  implication  it 
leaves  that  question  for  the  determination  of  the  Board  of  Health.  This  is  made 
manifest  by  the  act  requiring  the  proof  of  reputableness  to  be  furnished  to  the 
board  when  the  applicant  presents  himself  for  examination,  and  by  withholding 
from  the  board  the  authority  to  issue  the  license  until  such  satisfactory  evidence 
is  furnished.  In  the  court's  opinion  the  language  of  this  act  Ls  susceptible  of  no 
other  construction  than  that  it  placed  the  burden  on  the  relators,  when  they  pre- 
sented themselves  for  examination  before  the  board,  to  prove  to  its  satisfaction  by 
satisfactory  evidence  the  reputableness  of  Barnes  University,  and  especially  the 
medical  department  thereof. 

If  the  court  correctly  understands  the  position  of  counsel  for  the  relators,  they 
did  not  controvert  the  soundness  of  the  conclusions  above  stated,  but  contended 
that,  under  the  laws  of  Missouri,  "the  State  Board  of  Health  has  no  authority  to 
adopt  and  promulgate  fixed  rules  and  regulations  as  to  the  standard  by  which  the 
various  medical  colleges  of  this  state  will  be  adjudged  reputable  or  non-reputable 
within  the  meaning  of  the  statute  relating  to  the  practice  of  medicine  and  surgery. 
The  word  'reputable,'  as  applied  to  medical  colleges,  means  reputation,  and  must 
be  proved  in  the  same  way."  But,  in  the  court's  opinion,  counsel  misconceived  the 
meaning  and  object  of  the  rules  and  regulations  adopted  by  the  Board  of  Health 
fixing  the  standards  by  which  various  medical  colleges  would  be  adjudged  reput- 
able within  the  meaning  of  the  act  under  consideration.  The  rule  simply  provides 
that  all  medical  colleges,  wherever  located  (and  not  simply  those  situated  in 
Missouri),  which  should,  on  or  before  October  1,  1907,  conform  to  the  standards 
specified  in  the  schedule  of  minimum  requirements  adopted  by  the  board  on  July 
11,  1907,  "should  be  rated  and  classified  as  accredited  and  reputable,  and  whose 
students,  after  being  graduated  therefrom,  should  be  admitted  to  the  examination 
of  the  State  Board  of  Health  for  licenses  to  practice  medicine  aud  surgery  in  the 
state  of  Missouri,"  without  being  required  to  furnish  other  proofs  of  reputableness, 
and  thereby  save  each  of  them  the  time  and  expense  of  furnishing  the  proofs 
required  of  them  by  said  act.  In  other  words,  the  board,  by  such  rules,  undertook 
to  require  all  medical  colleges  to  adopt  such  standards  as  would  establish  and 
prove  their  reputableness  in  all  cases,  and  thereby  remove  those  burdens  from 
each  student  who  applied  for  a  license,  as  provided  by  said  act.  But  said  rules  of 
the  board  do  not  provide  that  no  graduate  from  any  medical  college  which  has  not 
conformed  to  those  requirements  shall  not  be  examined  touching  his  qualifications 
to  practice  said  professions.  This  construction  seems  to  have  been  adopted  subse- 
quent to  the  origin  of  this  controversy.  Neither  rule  nor  board  is  responsible 
tor  it. 

In  the  court's  opinion,  since  the  act  left  it  to  the  board  to  pass  on  the  reputa- 
bleness of  all  medical  colleges  whose  graduates  applied  to  it  for  examination,  and 
to  determine  the  character  of  the  evidence  by  which  said  fact  was  to  be  established, 
said  rules  were  not  only  reasonable  and  just,  but  were  also  wise  and  proper.  All 
medical  colleges  and  their  students  were  thereby  notified  in  advance  as  to  what 
would  satisfy  the  board  as  to  the  reputableness  of  each  college.  The  diploma  alone 
from  all  colleges  which  had  adopted  those  standards  would  entitle  the  holder 
thereof  to  take  the  examination  without  further  ado.  Otherwise  many  students 
might  innocently  be  induced  to  attend  colleges  which  were  not,  in  fact,  reputable, 
and  consequently  such  students  would  thereby  be  prevented  from  establishing  their 
reputableness.  In  all  such  cases  a  great  hardship  would  be  visited  on  all  such 
graduates,  but  under  these  rules  of  the  board  no  injustice  could  be  done  to  any 
college  or  graduate  thereof.  And,  beyond  that,  the  adoption  of  said  standards  by 
the  board,  and  the  direct  tendency  thereof,  if  the  colleges  will  only  conform 
thereto,  would  be  to  uplift  and  better  medical  instruction,  place  her  institutions 
of  learning  on  a  higher  plane,  and  reduce  the  practice  of  medicine  and  surgery  to 
a  more  perfect  science,  all  of  which  would  result  in  great  good  to  suffering 
humanity. 


376 

But  suppose,  for  argument's  sake,  that  the  court  is  in  error  in  its  views  regard- 
ing the  meaning  and  object  of  the  rules  of  the  board  establishing  said  standards, 
and  that  it  was  the  intention  of  the  board  to  thereby  notify,  in  advance,  all  per- 
sons who  might  present  themselves  for  examination  for  licenses  to  practice  medi- 
cine and  surgery  that  it  would  examine  no  one  except  those  who  presented  a 
diploma  from  some  one  of  the  medical  colleges  which  had  adopted  said  standards. 
That  would  not  excuse  the  applicant  for  examination  from  tendering  to  the  board 
such  evidence  as  he  might  have  tending  to  prove  that  his  alma  mater  was  a 
reputable  school  within  the  meaning  of  the  statute.  The  rule  would  be  illegal  and 
void,  and  would  constitute  no  legal  bar  to  the  applicant's  right  to  stand  the  exam- 
ination for  his  license.  Nor  could  the  adoption  of  such  a  rule  be  construed  to 
mean  that  the  board  had  thereby  refused  to  examine  a  particular  person  for  a 
license  to  practice  medicine.  The  board  might  change  its  mind  before  the  date 
fixed  arrived,  and  before  being  called  on  to  act.  •  As  long  as  a  man  or  a  body  of 
men  fill  any  official  position,  the  law  presumes  he  or  they  will  perform  his  or 
their  duties  whenever  any  matter  is  legally  presented  for  action,  notwithstand- 
ing general  declarations  previously  made  to  the  contrary. 

If  the  relators  possess  the  necessary  scholastic  attainments  and  diplomas  from 
some  reputable  college,  and  if  they  can  produce  before  the  Board  of  Health  satis- 
factory evidence  of  the  reputableness  of  said  college,  then  doubtless  the  board  will, 
on  proper  request,  give  them  an  examination,  as  provided  for  by  act  of  1907, 
and,  if  found  qualified,  will  presumably  issue  to  them  licenses.  But  if,  after  such 
showing,  the  board  should  unjustly  and  arbitrarily  refuse  to  examine  them,  it 
would  then  be  time  enough  to  institute  mandamus  proceedings  to  compel  it  to  act. 


GIVING  MEDICAL  TREATMENT  FOR  EYES,  PRACTICE   OF  MEDICINE— 

ADMISSIBILITY  OF  EVIDENCE— ADVERTISING— CLAIMING  TO 

BE  AN  "OPHTHALMOLOGIST"  NO  DEFENSE 

State  v.  Blumenthal,  1.1,1  Mo.  App.  502;  125  8.  W.  1138 
1910 

The  Kansas  City  Court  of  Appeals  says  that  the  evidence  in  this  case  tended 
to  show  that  the  defendant  had  an  office  in  a  hotel,  and  that  on  his  door  was  the 
sign,  "Dr.  H.  M.  Blumenthal";  that  a  woman  went  to  his  office  and  engaged  him 
to  treat  her  eyes,  he  telling  her  that  she  had  a  cataract,  astigmatism,  and  other 
ailments  of  the  eyes,  which  he  treated  by  prescribing  ointments  or  salves  and  eye- 
washes, for  which  he  charged  her  $10;  that  he  likewise  furnished  and  fitted 
eyeglasses,  for  which  he  charged  $15.  The  eye  medicine  was  sent  to  her  by  her 
brother  at  one  time  and  delivered  personally  by  the  defendant  at  several  other 
times.  In  view  of  such  evidence,  there  can  be  no  doubt  that  the  defendant  was 
practicing  medicine  within  the  meaning  of  the  law. 

It  was  decided  by  the  Supreme  Court  of  Illinois  (People  v.  Smith,  208  111.  31) 
that  a  traveling  optician  who  invited  persons,  by  advertisements,  who  were 
afflicted  with  dizziness,  neuralgia,  etc.,  to  visit  him  and  obtain  relief  by  purchas- 
ing spectacles,  and  disclaimed  medical  or  surgical  treatment,  was  not  treating, 
operating,  or  prescribing  for  physical  ailments  under  the  statute  of  that  state. 
That  was  no  more  than  to  say  that  one  who  merely  sold  and  fitted  eyeglasses  was 
not  practicing  medicine,  and  the  trial  court  gave  such  declaration  of  law  in  this 
case.  But  the  facts  which  the  evidence  tended  to  prove  against  the  defendant  in 
this  case  were  that  he  not  only  sold  and  fitted  spectacles,  but  gave  medical  treat- 
ment for  the  eyes. 

Objection  was  made  to  the  admission  of  the  evidence  showing  the  sign  at  the 
defendant's  room  door  at  the  hotel,  as  set  out  above,  but  the  ruling  was  proper. 
It  tended,  connected  with  the  other  evidence,  to  support  the  charge  made. 

The  trial  court  likewise  propertly  admitted  evidence  of  the  defendant  advertis- 
ing as  a  practitioner  of  medicine.    It  is  true  that  the  Missouri  statute  constitutes 


377 

the  act  of  advertising  as  a  physician  as  an  offense  within  itself,  yet  that  fact  does 
not  exclude  the  fact  as  probative  of  the  offense  of  practicing.  The  fact  that 
evidence  having  a  tendency  to  prove  the  offense  charged  may  also  tend  to  prove 
some  other  offense  not  charged  does  not  necessarily  render  it  incompetent. 

There  was  some  claim  made  by  the  defendant  that  he  was  an  ophthalmologist. 
If  that  be  accepted  as  true,  it  would  not  serve  him  any  purpose,  since  that  is  a 
branch  of  medical  science,  and  its  practice  would  fall  within  the  terms  of  the 
statute.  That  term  seems  to  signify  some  disease  or  diseases  of  the  eye,  anil  the 
court  can  see  no  reason  why  one  who  prescribes  medicines  for  such  diseases  would 
not  be  as  guilty  as  by  any  other  name.  It  is  the  act  committed,  and  not  its 
designation,  which  constitutes  the  offense. 

The  court  was  not  impressed  with  the  defendant's  argument  as  to  lack  of  proof 
ss  to  his  practicing.  His  sign,  office,  advertisement,  treatment  for  a  considerable 
period  of  the  prosecuting  witness  was  ample  evidence. 


PHYSICIANS  EXCEPTED  FROM  MISSOURI  MEDICAL  PRACTICE  ACTS 

State  v.  Hellscher,  150  Mo.  App.  230;  129  8.  W.  1035 

1910 

The  St.  Louis  Court  of  Appeals  says  that  the  act  of  1901,  in  so  many  words, 
was  limited  to  those  who  should  thereafter  practice  who  had  not  theretofore  reg- 
istered. Those  who  had  theretofore  been  duly  registered  were  excluded  from  the 
law.  In  other  words,  this  statute,  as  originally  enacted  in  1901,  did  not  create  a 
general  offense  on  the  part  of  all  who  should  thereafter  practice,  but  created  an 
offense  limited  to  a  particular  class  of  persons;  that  is,  those  who  had  not  been 
theretofore  registered,  who  should  thereafter  practice  without  first  registering 
with  the  State  Board  of  Health.  The  law  related  to  acts  committed  by  those  par- 
ticular persons  only,  to  those  thereafter  practicing  medicine  or  surgery  who  had 
not  theretofore  been  licensed  as  provided  by  law. 

This  court  does  not  think  that  the  amendment  made  by  the  act  of  1907  in  any 
manner  changed  this  phase  of  the  law,  nor  made  it  any  the  less  part  of  the  enact- 
ing clause,  notwithstanding  the  fact  that  what  was  before  in  the  body  of  the 
enacting  section  or  clause  now  appears  as  attached  to  that  clause  by  way  of  a 
proviso.  Changing  the  position  of  the  words  did  not  change  the  law.  Looking  at 
what  the  general  assembly  was  attempting  to  do  and  considering  the  matter  and 
phraseology  of  the  amendment  of  1907,  it  is  obvious  that  this  arrangement  was 
more  for  the  purpose  of  avoiding  awkwardness  of  expression,  than  with  any  intent 
of  change  in  the  object  of  the  law  itself,  and  the  mere  fact  that  what  had  before 
been  in  another  place  in  the  enacting  section  (namely,  the  phrase  "except  physi- 
cians now  registered")  is  transposed,  and  appears  under  the  designation  of  a 
proviso,  has  not  had  the  effect  of  eliminating  the  words  from  the  enacting  clause 
itself. 

It  is  still  the  intention  of  the  act  regulating  the  practice  of  medicine  and  sur- 
gery that  its  operation  shall  apply  only  to  those  who  had  not  been  licensed  or 
registered  as  physicians  or  surgeons  prior  to  March  12,  1901.  Obviously  the  legis- 
lature, by  the  amendment  of  1907,  did  not  intend  to  invalidate  the  registration 
and  licenses  of  physicians  and  surgeons  who  had  been  regularly  licensed  and  regis- 
tered under  the  laws  prior  to  March  12,  1901,  the  date  of  the  approval  of  the  act 
of  1901,  any  more  than  it  had  by  the  act  of  March  12,  1901,  made  its  provisions 
applicable  to  those  who  had  registered  as  physicians  or  surgeons  prior  to  that 
date. 

Another  reason  for  the  insertion  of  this  limitation  at  the  end  of  the  section, 
instead  of  leaving  the  exception  as  in  the  original  section,  may  have  been  that,  as 
new  prohibitions  were  inserted  by  the  amendment,  the  lawmakers  did  not  intend 
to  leave  any  doubt  that  those  new  requirements  were  not  to  be  made  of  the  old 
physicians. 


378 

WHO  ACCOUNTED  "PHYSICIANS  NOW  REGISTERED"  UNDER  MEDICAL 

PRACTICE  ACT 

State  v.  Carson,  231  Mo.  1;  132  S.  W.  587 
1910 

The  Supreme  Court  holds  that,  as  the  defendant  was  concededly  registered  and 
licensed  under  the  Missouri  act  of  1877,  he  came  squarely  within  the  exception  to 
the  act  of  1901,  as  "a  physician  now  registered,"  and  that  no  subsequent  act  of 
the  Missouri  legislature  has  revoked  the  license  given  him  under  the  act  of  1877, 
so  that  it  was  error  to  require  him  to  have  been  also  licensed  by  the  board  of 
health. 

The  court  says  that,  after  the  defendant  was  duly  registered  under  the  act  of 
1877,  namely,  in  1880,  by  riling  a  copy  of  a  diploma,  the  legislature  passed  the  act 
of  1883,  which  provided  that  it  should  not  apply  to  those  who  had  been  practicing 
medicine  five  years  in  that  state  prior  to  the  enactment  of  that  law,  but  contained 
no  provision  as  to  prior  registration.  Then  came  the  act  of  1901,  making  it  a 
misdemeanor  for  any  person,  "except  physicians  now  registered,"  to  practice 
medicine  or  surgery  without  a  license  from  the  State  Board  of  Health.  The  trial 
court  held  that  a  physician  registered  under  the  act  of  1874  was  a  registered  phy- 
sician within  the  meaning  of  the  law  of  1901,  and  a  physician  registered  under  the 
act  of  1877,  five  years  before  the  act  of  1883  went  into  effect,  would  be  registered 
within  the  purview  of  the  law  of  1901,  but,  inasmuch  as  the  defendant  was  not 
registered  until  1880,  less  than  five  years  before  1883,  he  was  not  a  registered  phy- 
sician within  the  meaning  of  the  law  of  1901,  which  last  conclusion  was  erroneous. 

The  construction  which  the  state  sought  to  have  given  the  act  of  1901  would 
necessitate  the  court  amending  the  statute  so  that  it  would  read:  "Any  person, 
except  physicians  now  registered  and  qualified  to  practice  under  the  laws  of 
1883."  The  defendant  was  not  prosecuted  for  a  violation  of  the  act  of  1883  while 
it  was  in  force.  That  act  was,  in  turn,  repealed  by  the  act  of  1901,  and  five 
years'  practice  no  longer  afforded  protection.  Thus  if  a  physician  had  practiced 
five  years  before  1883,  but  was  not  registered,  he  would  clearly  fall  under  the  con- 
demnation of  the  act  of  1901  because  he  was  not  registered.  What  effect  then  had 
the  act  of  1901  on  the  registration  of  the  defendant's  diploma  and  certificate  in 
1880?  The  diploma  was  registered  under  the  law  of  1877,  and  no  subsequent  act 
required  or  permitted  it  to  be  registered  again.  While  it  might  or  might  not  have 
protected  him  from  prosecution  during  the  life  of  the  act  of  1883,  what  was  there 
to  prevent  the  legislature  repealing  the  act  of  1883  as  it  did,  and  providing  that 
his  registration  under  the  act  of  1877  should  protect  him  from  prosecution  and 
permit  him  to  continue  his  practice?  No  act  of  the  legislature  had  revoked  the 
iicense  the  state  had  granted  him  in  1880,  and  no  tribunal  authorized  to  do  it  had 
'done  so.  Even  if  it  should  be  said  that  the  act  of  1883  impliedly  rendered  his 
registration  ineffective,  it  cannot  be  doubted  that  the  legislature  could  restore  its 
efficacy  by  express  provision  as  it  did  in  1901.  This  court  is  unable  to  see  any 
substantial  reason  why  a  physician  registered  under  the  act  of  1874  should  be 
within  the  exception  to  the  act  of  1901,  and  one  registered  under  the  act  of  1877 
under  the  broad  language  of  the  exception  of  the  act  of  1901  does  not  also  fall 
within  the  act  of  1901. 


PRACTICE   IN   FOREIGN   STATE   INSUFFICIENT   QUALIFICATION 

Craig  v.  Board  of  Medical  Examiners  of  State  of  Montana,  12  Mont.  203;  29 

Pac.  532 
1892 

James  Craig  applied  to  the  board  of  medical  examiners  for  a  certificate 
authorizing  him  to  practice  medicine  and  surgery.  The  board  refused  to  grant 
such  certificate,  unless  applicant  submitted  to  and  successfully  passed  an  exami- 
nation. Decision  of  board  affirmed  by  district  court,  and  applicant  appeals. 
Affirmed. 


379 

It  is  agreed  that  the  appellant  is  a  citizen  of  the  United  States,  and  a  resident 
of  this  state;  that  he  removed,  in  April,  1891,  from  the  state  of  Maine,  where 
he  had  heen  engaged  14  years  in  the  practice  of  medicine  and  surgery;  that  he 
applied  for  and  received  from  the  respondent  a  certificate,  dated  April  22,  1891, 
which  entitled  him  to  practice  his  profession  until  the  next  regular  meeting  of 
the  board;  and  that  respondent  demanded,  and  appellant  paid,  the  sum  of  $15. 
The  board  required  appellant  to  submit  to  and  successfully  pass  an  examination. 
Appellant  refused  to  submit  to  such  examination,  or  to  any  examination  what- 
ever. The  board  thereupon  refused  to  grant  him  a  certificate  to  practice  medicine 
and  surgery  in  the  state  of  Montana.  Prior  to  such  refusal  the  appellant  pre- 
sented his  diploma  to  said  board  for  verification  as  to  its  genuineness.  The  board 
found  appellant's  diploma  to  be  genuine,  and  to  have  been  issued  by  a  medical 
school  legally  organized  and  in  good  standing,  whose  teachers  were  graduates  of  a 
legally  organized  school,  and  that  appellant  was  the  same  person  to  whom  such 
diploma  was  originally  issued.  The  appellant  claims  that  the  board  of  medical 
examiners  is  not  authorized  by  the  statute,  to  require  him  to  pass  an  examina- 
tion. He  became  a  resident  of  this  state  about  two  years  after  the  passage  of  the 
act  of  1889,  the  fourth  section  of  which  provides  that  all  persons  hereafter  com- 
mencing the  practice  of  medicine  and  surgery  in  any  of  its  branches  in  the  terri- 
tory, shall  apply  to  said  board  for  a  certificate  so  to  do,  and  such  applicant  at  the- 
time  and  place  designated  by  said  board,  or  at  the  regular  meeting  of  said  board, 
shall  submit  to  an  examination,  etc.  There  can  be  no  controversy  respecting  the 
meaning  of  these  clauses  when  viewed  by  themselves;  but  the  appellant  contends 
that  Ave  must  consider  the  entire  statute,  and  that  the  third  section  limits  its 
operation  to  non-graduates. 

The  question  was  inquired  into  when  the  subject  was  before  this  court  in  State 
v.  Board,  10  Mont.  162,  25  Pac.  Rep.  440,  and  it  was  adjudged  that  these  pro- 
visions required  the  examination  of  all  graduates  "who  commence  to  practice  med- 
icine in  this  state  after  the  passage  of  this  act."  The  court  approves  this  con- 
struction of  the  statute.  The  appellant  maintains  that,  if  this  view  be  sound,  the 
act  creates  an  unjust  discrimination  against  the  rights  and  privileges  of  the  citi- 
zens of  another  state,  and  is  in  conflict  with  the  constitution  of  the  United  States, 
of  the  fourteenth  amendment.  Legislation  similar  to  that  under  consideration  has 
been  thoroughly  discussed  in  many  cases,  and  uniformly  upheld  by  the  court.  It 
is  founded  upon  the  police  power  of  the  state.  The  court  quotes  from  Mr.  Justice 
Field  of  the  U.  S.  Supreme  Court  in  Dent  v.  W.  Va.,  and  concludes:  "We  concur 
in  this  opinion,  which  has  not  been  criticized,  and  it  is  needless  to  multiply  cita- 
tions.   It  is  ordered  and  adjudged  that  the  judgment  be  affirmed." 


COURT  CAN  NOT  SUPPLANT  BOARD  OF  MEDICAL  EXAMINERS 

State  ex  rel.  State  Board  of  Medical  Examiners  V.  First  Judicial  District  Court 

of  Montana,  26  Mont.  121;  66  Pac.  754 

1901 

'An  applicant  for  a  certificate  to  practice  medicine  was  detected  in  the  use, 
during  his  examination,  of  certain  notes  and  memoranda  to  aid  him  in  answering 
the  questions  propounded,  and  was  thereupon  denied  the  privilege  of  continuing 
the  examination.  A  charge  was  preferred  to  the  board  by  its  secretary,  accusing 
him  of  "unprofessional,  dishonorable,  and  immoral  conduct,"  the  specifications 
being  that  he  had  been  detected  in  the  use  of  said  notes  and  memoranda  for  the 
purpose  stated.  After  written  notice,  and  an  examination  by  the  board  into  the 
facts,  he  was  found  guilty,  and  refused  a  certificate.  He  immediately  appealed  to 
the  District  Court,  and  thereupon  applied  to  it  for  an  order  permitting  him  to 
engage  in  the  practice  of  his  profession  until  a  hearing  could  be  had  upon  the 
merits,  and  the  judge,  after  requiring  him  to  submit  to  an  examination  in  open 
court  as  to  his  qualifications,  made  such  an  order.  Was  this  within  the  power  of 
the  court?  The  legislature  of  the  state  has  deemed  it  proper,  in  a  case  where  a 
certificate  has  been  revoked,  to  authorize  the  courts,  in  their  discretion,  to  grant 
the  appellant  permission  to  practice  pending  his  appeal,  but  it  is  silent  as  to  the 


380 

power  of  the  court  in  cases  in  which  the  board  has  refused  a  certificate.  Under 
these  circumstances,  the  Supreme  Court  of  Montana  holds  that  it  was  not  within 
the  power  of  the  District  Court  to  make  the  order  mentioned.  It  says  that  the 
prohibition  directed  to  the  individual  citizen  against  practicing  medicine  until  he 
has  been  examined  by  the  lawfully  constituted  authorities  and  declared  sufficiently 
qualified  is  as  much  a  limit  to  the  power  of  the  court  as  if  it  had  been  expressly 
provided  that  the  court  should  not  grant  permission  to  pursue  the  practice  pend- 
ing appeal  in  this  class  of  cases.  It  sees  a  difference,  too,  in  granting  the  right  to 
practice  medicine  pending  an  appeal  between  such  a  case  as  the  legislature  has 
provided  for  and  that  here  under  consideration.  In  the  former,  it  says,  the  con- 
ditions precedent  have  all  been  fulfilled.  The  party's  right  has  accrued.  He  has, 
perhaps,  by  his  energy  and  application,  built  up  a  profitable  practice.  It  is  the 
means  of  support  for  himself  and  family.  This  should  not  be  taken  away  without 
good  cause.  It  is,  therefore,  but  just  that  he  be  permitted  to  exercise  his  right 
until  it  is  finally  adjudged  that  he  has  forfeited  it;  especially  so,  if  it  is  made  to 
appear  that  the  forfeiture  has  been  declared  upon  doubtful  evidence,  or  from  bad 
motives  on  the  part  of  the  board.  But  in  the  case  of  an  applicant  for  a  certificate 
in  the  first  instance  no  such  reason  exists.  No  right  has  been  established.  No 
practice  depends  upon  his  attention.  He  will  suffer  no  immediate  material  injury 
if  the  certificate  be  withheld  for  a  reasonable  time  until  he  can  demonstrate  that 
the  action  of  the  board  in  denying  it  was  arbitrary  or  erroneous.  The  burden  is 
upon  him  to  establish  his  right.  In  the  other  case  the  burden  rests  upon  the  state 
represented  by  the  medical  board. 


APPEAL  FROM  DECISION  OF  BOARD  OF  MEDICAL  EXAMINERS 

State  ex  rel.  Riddell  et  al.,  State  Board  of  Medical  Examiners  v.  District  Court, 
27  Mont.  103;  69  Pac.  710 

1902 

The  Supreme  Court  says  that  it  was  ui'ged  that  a  notice  of  an  appeal  to  the 
District  Court  from  a  decision  of  the  board  should  have  been  entitled  by  the  name 
of  the  party  appealing  v.  The  Board  of  Medical  Examiners  of  the  State  of  Mon- 
tana, and  that  not  being  so  entitled,  it  was  not  sufficient  to  give  the  District 
Court  jurisdiction  of  the  appeal.  But  the  Supreme  Court  holds  that  there  was  no 
merit  in  this  contention.  It  says  that  section  1892  of  the  Code  of  Civil  Proce- 
dure provides,  "An  affidavit,  notice  or  other  paper,  without  the  title  of  the  action 
or  proceeding  in  which  it  is  made  or  with  a  defective  title,  is  as  valid  and 
effectual  for  any  purpose  as  if  duly  entitled,  if  it  intelligibly  refer  to  such  action 
or  proceeding."  Though  the  proceeding  on  the  appeal  in  such  cases  as  that  under 
consideration  is  not  properly  an  action,  in  the  strict  sense  of  the  term,  but  a 
special  proceeding,  it  should,  perhaps,  have  been  entitled  as  contended;  yet  the 
failure  of  the  clerk  to  so  entitle  it  did  not  affect  the  merits  of  the  controversy. 
Then  it  did  not  appear  whether  the  board  was  represented  at  the  trial.  However, 
this  was  of  no  moment,  the  Supreme  Court  says,  the  notice  in  the  case  having 
been  sufficient  to  meet  the  requirements  of  the  statute.  It  contained  intelligible 
reference  to  the  decision  of  the  board,  by  which  the  party  appealing  felt  aggrieved, 
and  his  purpose  to  appeal  therefrom.  That  the  board  allowed  the  appeal  to  go  by 
default,  if  such  be  the  fact,  did  not  affect  the  case.  Furthermore,  upon  the  theory 
that  the  board  Avas  the  person  aggrieved  by  the  action  of  the  District  Court  in 
reversing  the  action  of  the  board  and  declaring  the  applicant  entitled  to  a  certifi- 
cate, the  proper  course  to  be  pursued  by  it  was  to  appeal  to  the  Supreme  Court 
from  the  judgment,  as  provided  in  the  statute,  or  to  move  for  a  new  trial.  Under 
the  statute  no  formal  pleadings  are  required.  Wherefore,  the  district  had  juris- 
tion  of  the  appeal  from  the  board,  and  to  render  the  particular  judgment  stated, 
and  the  board's  application  for  a  writ  of  certiorari  must  be  denied. 


381 

PROVING  BEING  PHYSICIAN  IN  ACTION  FOR  SERVICES 
Leggat  v.  Carrick,  ■!■">  Mont.  '■>! ;  88  Vac.  188 
1907 

Suit  was  brought  to  recover  a  balance  of  $100  for  professional  services 
rendered  for  the  defendant,  by  the  plaintiff,  a  physician.  The  physician  obtained 
a  judgment  in  the  District  Court,  which  is  affirmed,  although  it  was  urged  that 
the  evidence  was  insufficient  to  sustain  the  decision  of  the  lower  court,  in  that 
there  was  not  any  evidence  offered  on  behalf  of  the  plaintiff  to  show  "that  the 
plaintiff  holds  a  certificate  granted  by  the  state  medical  board  of  the  state  of 
Montana,  entitling  him  to  practice  medicine." 

If  the  fact  affirmatively  appeared  that,  at  the  time  the  services  were  rendered 
the  plaintiff  did  not  have  a  certificate,  then,  the  Supreme  Court  says,  the  question 
of  his  right  to  recover  would  be  raised  directly.  But,  as  that  fact  did  not  appear, 
the  only  question  presented  here  was:  On  whom  rested  the  burden  of  proof?  Was 
the  burden  on  the  plaintiff  in  the  first  instance  to  show  that  he  had  such  certifi- 
cate, or  was  it  on  the  defendant  to  show  that  he  did  not  have  it? 

The  testimony  given  at  the  trial  on  behalf  of  the  plaintiff  by  a  witness  named 
Kremer  was:  "I  knew  Dr.  Leggat  at  that  time,  and  I  can  state  that  I  knew  him 
to  be  a  physician  and  surgeon  in  the  city  of  Butte,  and  at  that  time  was  the  city 
physician."  In  view  of  this  testimony,  the  Supreme  Court  thinks  that  the  pre- 
sumption followed  that  Dr.  Leggat  had  complied  with  the  law,  and  that  the 
burden  of  proof  was  on  the  defendant  to  show  that  he  had  not  done  so.  And,  in 
the  absence  of  any  attempt  on  the  part  of  the  defendant  to  make  this  proof,  the 
court  thinks  the  evidence  wras  sufficient  to  sustain  the  decision  of  the  lower  court. 

The  Supreme  Court  says  that  after  a  careful  review  of  the  authorities  the 
Court  of  Appeals  of  Illinois,  in  Williams  v.  People,  20  111.  App.  92,  said:  "Where 
the  question  of  license  or  qualification  of  a  physician  arises  collaterally  in  a  civil 
action  between  party  and  party,  or  between  the  doctor  and  the  one  who  employed 
him,  then  the  license  or  due  qualification  under  the  statute  to  practice  will  be 
presumed.  McPherson  v.  Cheadell,  24  Wend.  (N.  Y. )  15;  Thompson  v.  Sayre,  I 
Denio  (N.  Y.)  175;  Pearce  v.  Whale,  5  Barn.  &  Cres.  758."  The  reason  for  the 
rule  is  stated  by  the  same  court  in  the  City  of  Chicago  v.  Wood,  24  111.  App.  40, 
as  follows:  "The  reason  why  the  license  will  be  presumed  where  there  is  no  evi- 
dence to  the  contrary,  rests  on  the  principle  that,  when  an  act  is  required  by  posi- 
tive law,  to  be  done,  the  omission  of  which  would  be  a  misdemeanor,  the  law  pre- 
sumes that  it  has  been  done,  and  therefore  the  party  relying  on  the  omission  must 
make  some  proof  of  it  though  it  be  a  negative." 

While  there  is  some  conflict  in  the  decisions,  the  decided  weight  of  authority 
seems  to  be  in  favor  of  the  rule  stated  above  in  Williams  v.  People.  McPherson 
v.  Cheadell,  24  Wend.  (N.  Y.)  15;  Jo  Daviess  County  v.  Staples,  108  111.  App.  539; 
Lacy  v.  Kossuth  County,  106  Iowa,  16;  Dickerson  v.  Gordv,  5  Rob.  (La.)  489; 
Lyford  v.  Martin,  79  Minn.  243;  Cather  v.  Damerell  (Neb.)  99  N.  W.  35;  Rider  v. 
Ashland  County,  87  .Wis.  160;  Good  v.  Lasher,  99  111.  App.  653. 

The  same  general  rule  is  recognized  by  the  Court  of  Appeals  of  Indiana  in 
Cooper  v.  Griffin,  13  Ind.  App.  212,  but,  by  reason  of  a  special  statute  in  that 
state,  the  contrary  rule  is  upheld. 

A  somewhat  analogous  question  is  presented  in  an  action  brought  in  a  court  of 
this  state  (Montana)  by  a  foreign  corporation.  It  has  been  held  that  it  is  not 
necessary  for  the  foreign  corporation  to  prove,  in  the  first  instance,  that  it  has 
complied  with  the  laws  of  this  state  entitling  it  to  do  business  here. 

Nor  does  the  Supreme  Court  think  that  the  trial  court  erred,  in  allowing 
interest  on  the  amount  recovered,  its  action  appearing  to  be  warranted  by  section 
4280  of  the  Civil  Code  of  Montana,  which  provides :  "Every  person  who  is  entitled 
to  recover  damages  certain,  or  capable  of  being  made  certain  by  calculation,  and 
the  right  to  recover  which  is  vested  in  him  on  a  particular  day,  is  entitled  also  to 
recover  interest  thereon  from  that  day,  except  during  such  time  as  the  debtor  is 
prevented  by  law,  or  by  the  act  of  the  creditor,  from  paying  the  debt" — and  by 
the  construction  given  to  that  section  by  this  court  in  Hefferlin  v.  Karlman,  29 
Mont.  139. 


382 

PEOCEDUEE  IN  MONTANA  AFTEE  EEVOCATION  OF  LICENSE 
State  ex  rel.  Gattan  v.  District  Court,  39  Mont.  13't;  101  Pac.  961 

1909 

The  Supreme  Court  says  that  the  relator  was,  prior  to  Nov.  23,  1907,  a  physi- 
cian duly  licensed  by  the  State  Board  of  Medical  Examiners.  Complaint  having 
been  made  to  the  board  that  he  had  been  guilty  of  unprofessional  and  dishonorable 
conduct,  a  trial  was  had  and  the  board  revoked  his  license.  He  appealed  to  the 
District  Court,  which  held  trial  Nov.  23,  1907,  with  a  jury  of  six  physicians  in 
conformity  with  the  statute,  Section  1588  of  the  Eevised  Codes  of  Montana.  The 
trial  resulted  in  a  verdict  finding  the  charges  sustained  and  affirming  the  judg- 
ment of  the  board  of  examiners,  and  judgment  was  by  the  court  entered  accord- 
ingly. 

The  relator  subsequently  filed  in  the  Supreme  Court  his  application  for  a  writ 
of  review  to  annul  the  judgment  so  entered  against  him.  It  was  alleged  that  the 
District  Court  was  without  jurisdiction  to  render  and  enter  the  judgment  because 
the  jury  selected  to  try  the  charges  was  not  a  legal  jury,  in  that  the  names  of  the 
persons  constituting  it  were  not  drawn  from  the  regular  jury  box  in  conformity 
with  the  provisions  of  law  on  the  subject,  but  that  the  jurors  were  selected  under 
arbitrary  order  and  direction  of  the  court,  and  that  the  jury,  as  constituted,  con- 
sisted of  six  persons  only,  whereas  the  relator  was  entitled  to  have  the  issue 
involved  tried  by  a  constitutional  jury  of  twelve  persons,  drawn  and  impaneled  as 
provided  by  law  for  all  actions  and  proceedings  in  the  district.  But  the  applica- 
tion must  be  denied  for  two  reasons: 

1.  The  relator  had  a  right  of  appeal  from  the  judgment.  While  proceedings 
had  under  the  law  before  the  board  of  medical  examiners  touching  the  granting  or 
revoking  of  a  license  may  not  in  any  sense  be  regarded  as  the  administration  of  a 
judicial  remedy  an  appeal  to  the  District  Court  from  one  of  its  determinations, 
whereon  a  trial  of  the  issue  is  had  de  novo  (anew),  must  be  regarded  as  an  appli- 
cation to  that  court  for  a  judicial  remedy.  The  appeal  is  granted  as  a  method  of 
getting  the  matter  involved  before  a  court  that  it  may  be  determined  judicially. 
It  is  a  special  proceeding  commenced  in  the  District  Court  by  the  filing  of  the 
appeal.  In  all  such  proceedings  the  party  aggrieved  has  an  appeal  to  the  Supreme 
Court,  provided  he  avails  himself  of  his  right  within  one  year.  He  may  not  per- 
mit the  time  for  appeal  to  lapse  and  then  have  the  judgment  reviewed  on  writ  of 
review. 

2.  The  application  did  not  question  the  jurisdiction  of  the  District  Court  to 
entertain  the  appeal  from  the  board  to  it.  The  only  question  made  with  reference  to 
the  proceedings  there  was  as  to  the  action  of  the  court  in  selecting  the  jury.  Its 
action  in  this  regard,  if  erroneous,  amounted  only  to  error  within  jurisdiction,  and 
could  not  be  corrected  by  writ  of  review.  The  application  for  a  writ  of  review 
must  therefore  be  dismissed. 


ONE     EEGISTEATION     EEQUIEED     OF     ALL 
Dodge  v.  State,  17  Neb.  140;  22  N.  W.  3^8 

1885 

The  plaintiff  was  convicted  of  practicing  medicine  in  Lancaster  county  without 
first  having  complied  with  the  act  "to  regulate  the  practice  of  medicine  in  the 
state  of  Nebraska,"  approved  March  3,  1881.  The  testimony  shows  that  he  is  a 
graduate  of  one  or  more  medical  colleges,  and  that  he  has  practiced  medicine  for 
about  eighteen  years  before  removing  to  this  state.  He  therefore  claims  that  the 
provisions  of  the  act  do  not  apply  to  him.  He  therefore  did  not  register  with  the 
county  clerk  as  required  by  law,  although  he  was  entitled  to  do  so.  The  court 
says  that  the  statute  authorizes  any  person  designated  in  the  act  to  register,  and 
thereupon  practice  medicine  or  surgery  for  a  livelihood.  The  act  applies  to  all 
alike — to  the  most  skillful  physician  and  the  mere  tyro;  each  must  register,  and 
bring  himself  within  one  of  the  classes  named.  The  evident  purpose  of  the  act  is 
to  restrict  the  practice  of  medicine  or  surgery  to  those  persons  whose  education 
and  training  may  reasonably  be  supposed  to  have  qualified  them  for  the  business. 


383 

The  fact  that  a  person  is  a  graduate  of  a  medical  college,  and  has  received  the 
degree  of  "Doctor  of  Medicine,"  will  not  authorize  him  to  practice  medicine  in  the 
state  unless  he  registers  as  required  hy  the  second  section  of  the  act.  He  mu-1  not 
only  possess  the  qualifications  designated  in  at  least  one  of  the  classes  named,  but 
must  allege  the  same  in  his  written  statement  filed  with  the  county  clerk,  and 
unless  he  do  so  he  is  liahle  to  the  penalties  prescribed  in  the  act.  Judgment 
affirmed. 


INDICTMENT  DEFECTIVE 

Gee  Woo  v.  State,  36  Xcb.  2>,1 ;  5',  N.  W.  51S 

1893 

The  plaintiff  was  convicted  of  practicing  medicine  in  the  state  without  lawful 
authority  so  to  do,  as  provided  in  the  act  of  1891.  It  appears  from  the  record 
that  the  plaintiff,  in  1889,  had  filed  the  statement  and  affidavit  required  by  the 
law  of  1881,  and  -was  practicing  under  the  law  when  the  act  of  1891  took  effect. 
The  plaintiff  claimed  the  indictment  was  faulty  in  that  it  failed  to  show  that  he 
belonged  to  either  of  the  two  classes  mentioned  in  the  act  of  1891,  viz.,  those 
already  in  practice  at  the  time  of  the  passage  of  the  act,  and  those  about  to 
engage  in  practice.  The  court  held  that  the  indictment  was  defective  and  reversed 
the  finding  of  the  lower  court. 


TREATMENT  OF  SICK  NOT  AN  ALT  OF  WORSHIP 

State  v.  Busicell,  >,0  A7e&.  15S;  5S  N.  IF.  728;  21  L.  R.  A.  6S 

1894 

The  defendant,  a  Christian  Scientist,  was  tried  on  an  indictment  charging  him 
with  professing  to  heal  and  otherwise  treat  sick  persons  without  being  licensed  to 
practice  medicine.  The  defendant  was  acquitted  and  the  case  was  brought  to  the 
supreme  court  to  review  the  instructions  given  to  the  jury,  at  the  request  of  the 
defendant.  The  sixth  instruction  was  that  the  object  of  the  legsilature  in  the 
enactment  of  the  medical  practice  act  was  only  to  provide  for  the  regulation  of 
the  practice  of  medicine,  surgery  and  obstetrics  as  those  terms  are  usually  and 
generally  understood  and  that  unless  the  jury  believed  from  the  evidence,  beyond 
a  reasonable  doubt,  that  the  defendant  practiced  medicine,  surgery  and  obstetrics 
as  those  terms  are  usually  and  generally  understood,  they  should  find  the  defend- 
ant not  guilty.  The  sole  question  for  the  determination  of  the  supreme  court  is 
whether  or  not  the  instruction  is  proper  in  view  of  the  evidence  adduced.  The 
court  concedes  perfect  toleration  of  religious  sentiment  and  the  enjoyment  of 
liberty  in  all  religious  matters  is  of  paramount  importance.  It  reviews  the 
evidence  of  a  number  of  witnesses  who  testified  that  they  were  cured  of  various 
ailments  by  the  defendant  and  quotes  from  the  counsel  for  the  defense,  who 
argued  that  to  hold  the  defendant  guilty  of  practicing  medicine  and  surgery  with- 
out a  license  would  be  to  abrogate  the  sections  of  the  constitution  which  provide 
that  all  persons  have  a  right  to  worship  God  according  to  the  dictates  of  their 
own  conscience,  and  which  also  provides  that  no  person  shall  be  molested  on 
account  of  his  mode  of  worship.  The  court  holds  that  the  exercise  of  the  art  of 
healing  for  compensation,  whether  exacted  as  a  fee  or  expected  as  a  gratuity, 
cannot  be  classed  as  an  act  of  worship,  neither  is  it  the  performance  of  a  religious 
duty.  The  evidence  convinces  the  court  that  the  defendant  was  engaged  in  treat- 
ing physical  ailments  or  others  for  compensation.  He  was  within  none  of  the 
exceptions  provided  by  the  statutes.  The  instructions  of  the  court  that,  for  a 
conviction  he  should  be  found  guilty  of  practicing  medicine,  surgery  and  obstetrics, 
as  generally  or  usually  understood,  are  erroneous.  The  object  of  the  statute  is  to 
protect  the  afflicted  from  the  pretensions  of  the  ignorant  and  avaricious,  and  its 
provisions  are  not  limited  to  those  who  follow  beaten  paths  and  established 
usages.  The  sole  question  presented  was  whether  the  defendant  had  treated  any 
physical  or  mental  ailment  of  another.  There  is  involved  no  question  of  sentiment 
nor  of  religious  practice  or  duty.    If  the  defendant  was  guilty  as  charged,  neither 


384  ;       Vf] 

pretense  of  religious  worship  nor  the  performance  of  any  other  duty  should  have 
exonerated  him  from  the  punishment  which  an  infraction  of  the  statute  involved. 
The  exceptions  of  the  county  attorney  are  sustained. 


TREATMENT  UNDER   DIRECTION   OF   PHYSICIAN   IS   PRACTICE   OF 

MEDICINE 

State  v.  Paul,  56  Nel.  369;  76  N.  W.  861 
1898 

Howard  Paul  was  charged  with  unlawfully  practicing  medicine  and  surgery 
without  a  license.  From  an  acquittal,  the  state  brings  error,  based  on  exceptions 
to  certain  instructions.     Exceptions  sustained. 

Howard  Paul  was  charged  with  unlawfully  practicing  medicine  and  surgery 
without  a  license.  Upon  the  trial  he  was  acquitted.  The  defendant  was  not  a 
registered  physician,  and  had  never  been  admitted  to  practice  medicine.  Dr. 
Bedell,  a  duly  registered  physician  and  surgeon  in  North  Platte,  was  assisted  in 
his  work  by  Charles  Thorp,  called  "Dr.  Thorp"  by  the  witnesses,  although  not 
shown  to  have  been  a  registered  physician,  and  the  defendant.  The  three  operated 
jointly,  and  all  remuneration  for  the  services  was  divided  between  them  equally, 
each  receiving  one-third.  Paul  assisted  in  the  performance  of  surgical  operations, 
and  administered  remedies  to  the  sick  and  infirm,  under  the  direction  of  Dr. 
Bedell.  The  state  produced  evidence  to  establish  that  the  defendant  treated 
patients  without  instructions  from  Dr.  Bedell,  and  in  his  absence.  The  court,  at 
the  request  of  the  defendant,  instructed  the  jury  that  a  person  not  a  physician  or 
surgeon  who  gives  or  applies  medicines  in  quantities  or  in  a  manner  as  directed 
by  a  licensed  physician  in  charge  of  the  patient,  or  who  assists  a  licensed  surgeon 
in  charge  of  an  operation,  and  only  does  what  the  surgeon  in  charge  directs  him 
to  do,  is  not,  by  reason  of  such  acts,  practicing  medicine  or  surgery  in  violation 
of  law.  Instruction  No.  6  contains  the  following:  "The  court  further  instructs 
the  jury  that,  although  you  may  find  from  the  evidence  that  the  defendant  assisted 
in  the  operations  and  treatments  of  the  persons  named  in  the  several  counts  in 
the  information  contained,  or  that  he  administered  medicines  to  such  persons,  or 
any  of  them,  yet  if  the  assistance  rendered  and  the  medicines  administered  were 
done  and  given  under  the  direction  and  charge  of  a  licensed  physician  and  surgeon, 
and  not  upon  the  prescription  or  under  the  direction  of  the  defendant,  you  will 
find  the  defendant  not  guilty."  Exceptions  were  taken  by  the  prosecutor  to,  and 
complaint  is  now  made  of,  the  giving  of  the  foregoing  portion  of  the  charge  of  the 
court  in  this  case.  It  is  argued  that  said  instructions  are  erroneous,  in  that  they 
authorized  and  required  an  acquittal  in  case  the  jury  found  that  his  acts  were 
performed  under  the  direction  and  instructions  of  a  registered  physician  and 
surgeon,  and  that  the  court,  in  its  charge,  excepted  from  the  operation  of  the 
statute  persons  not  within  the  contemplation  of  the  framers  of  the  law. 

The  legislature  has  excepted  from  the  operation  of  the  law  persons  belonging  to 
any  one  of  the  classes  designated  in  the  act,  and  the  only  proper  inference  to  be 
drawn  is  that  any  person  other  than  a  registered  physician  or  surgeon,  not 
embraced  in  one  of  such  classes,  who  shall  "operate  on,  profess  to  heal,  or  pre- 
scribe for,  or  otherwise  treat  any  physical  or  mental  ailment  of  another,"  is,  on 
conviction,  subject  to  the  penalties  prescribed  by  said  section  16,  already  quoted. 
The  court,  in  its  instructions,  excepted  from  the  force  and  effect  of  the  statute 
persons  not  within  the  meaning  of  the  law.  Under  the  instructions  the  jury  were 
fully  warranted  to  acquit  the  defendant.  The  statute  will  not  bear  the  interpreta- 
tion the  trial  court  has  placed  upon  it.  A  person  not  coming  under  the  exemptions 
in  the  act  is  within  the  condemnation  of  the  statute,  even  though  he  acted  under 
the  direction  of  a  registered  physician.  Any  other  interpretation  would  do 
violence  to  the  language  employed  by  the  legislature.  The  construction  adopted 
by  the  trial  court  would  protect  one  not  a  registered  surgeon  in  the  amputation 
of  the  limb  of  another,  in  case  the  operation  was  guided  by  the  instructions  of  a 
registered  surgeon.  Such  interpretation  would  nullify  and  defeat  the  beneficent 
object  of  the  law.  The  fifth  instruction  is  faulty  in  that  it  makes  the  repre- 
sentation,  claiming,  or  advertising  of  the  defendant  "to  be  a  regular,  legal,  or 


385 

competent  practitioner  of  medicine"  an  essentia]  elemenl  of  the  crime,  while 
the  statute  contains  no  such  ingredient  of  the  offense  of  illegal  practice  of  medi- 
cine. Under  this  instruction,  if  the  defendant  did  not  advertise  himself  to  be 
a  regular,  legal,  or  competent  practitioner  of  medicine,  there  could  be  no  con- 
viction, though  he  was  nut  at  the  time  a  registered  physician,  and  had  performed 
all  the  acts  charged  in  the  information  prohibited  by  the  statute.  The  excep- 
tions of  the  county  attorney  are  sustained. 


INJUNCTION    WILL    NOT    LIE    TO    RESTRAIN    ISSUANCE    OF    LICENSE 
AFTER  BOARD  HAS  CONSTRUED  LAW 

Lincoln  Medical  College  of  Cotner  University  v.  Poynter,  Governor,  et  ah,  GO  Neb. 

228;  82  N.  W.  855 
1900 

The  district  court  of  Lancaster  county,  at  the  instance  of  the  Lincoln  Medical 
College  of  Cotner  University,  rendered  a  decree  perpetually  enjoining  the  members 
of  the  State  Board  of  Health,  and  the  secretaries  of  said  board,  from  issuing  to 
Brestislaw  W.  Drasky  a  certificate  authorizing  him  to  on<ia«e  in  the  practice  of 
medicine  and  surgery  in  this  state.  The  board  had  determined  that  Drasky  was  a 
graduate  of  a  legally  chartered  medical  college,  in  good  standing,  and  entitled  to 
the  statutory  credential.  The  trial  court  decided  that  the  medical  college  at 
which  Drasky  was  graduated  did  not  meet  the  requirements  of  chapter  55,  Comp. 
St.  1899,  and  that  the  evidence  submitted  to  the  board  of  health  did  not  justify 
the  conclusion  reached  and  decision  made  by  that  body. 

The  appellants  insisted  that  the  Lincoln  Medical  College  has  no  legal  interest 
in  the  matter  in  controversy,  and  is  therefore  not  entitled  to  maintain  the  suit. 
The  only  interest  asserted  by  plaintiff  is  that  the  action  of  the  board  will  induce 
medical  students  to  matriculate  at  institutions  having  a  lower  standard  of  educa- 
tion than  that  established  by  the  plaintiff,  and  that  the  plaintiff  will  be  thereby 
exposed  to  unfair  competition.  The  purpose  of  the  law  is  not  to  protect  medical 
schools  or  medical  practitioners  from  competition  in  business.  It  is  a  police 
measure,  designed  to  prevent  imposition  upon  the  afflicted  by  qviacks  and  pre- 
tenders. The  plaintiff  does  not  stand  within  the  shelter  of  the  act,  and  hence  can 
claim  nothing  under  it.  The  plaintiff  has  no  legal  interest  in  the  matter.  It  is 
not  charged  with  the  duty  of  enforcing  the  law,  and  cannot  be  permitted  to 
assume  that  function,  even  from  motives  of  benevolence.  It  bears  no  commission 
from  the  state  authorizing  it  to  take  up  the  cudgel  pro  bono  publico.  Even  if 
plaintiff  could  rightfully  appeal  to  the  law  to  protect  it  from  business  competitors, 
it  has  not  shown  in  this  case  that  there  exists  the  relation  of  cause  and  effect 
between  the  act  complained  of  and  the  injury  apprehended.  It  does  not  claim  that 
loss  of  patronage  w7ill  result  from  the  delivery  of  the  certificate  to  Drasky,  which 
is  the  act  enjoined;  but,  rather,  that  it  will  suffer  by  the  decision  of  the  board — an 
act  already  completed,  accomplished,  and  beyond  recall.  The  substance  of  plain- 
tiff's contention  is  that  the  State  Board  of  Health  has  placed  a  construction  on  the 
law  regulating  the  practice  of  medicine  which  is  prejudicial  to  its  interests,  and 
which  ought  to  receive  judicial  condemnation.  The  office  of  an  injunction  is  to 
prevent  action.  It  cannot  reach  back  and  undo  what  has  been  already  done.  The 
decision  of  the  board  has  been  made.  It  is  a  past  act,  and,  whether  right  or 
wrong,  it  cannot  be  annulled  by  injunction.  The  threatened  injury  is  obviously 
not  the  proximate  consequence  of  the  act  enjoined.  The  judgment  is  reversed,  and 
the  cause  dismissed. 


OSTEOPATHY  THE  PRACTICE  OF  MEDICINE 

Little  v.  State,  60  Neb.  749;  84  N.  W.  21,8;  51  L.  R.  A.  717 

19TF0 

The  supreme  court  affirms  the  judgment  of  the  district  court  of  Lancaster 
county  holding  that  osteopathy  is  the  practice  of  medicine.  The  practice  of 
osteopathy  was  described  as  consisting  principally  in  rubbing,  pulling  and  knead- 


386 

ing  with  the  hands  and  fingers  certain  portions  of  the  bodies  and  flexing  and 
manipulating  the  limbs  of  those  afflicted  with  disease,  the  object  of  such  treatment 
being  to  remove  the  cause,  or  causes  of  trouble.  This,  it  was  urged,  did  not  make 
the  practitioner  a  practitioner  of  medicine  within  the  meaning  of  the  statute 
defining  the  latter  as  any  person  "who  shall  operate  or  profess  to  heal  or  prescribe 
for  or  otherwise  treat  any  physical  or  mental  ailment  of  another."  The  supreme 
court,  however,  is  of  the  opinion  that  those  who  practice  osteopathy  for  compensa- 
tion come  within  the  purview  of  the  statute  as  clearly  as  those  who  practice  what 
is  known  as  "Christian  science,"  and  that,  therefore,  this  case  falls  within  the 
principle  of  State  v.  Buswell,  which  it  decided  in  1894;  40  Neb.  158.  It  then  held 
that  the  act  to  establish  a  state  board  of  health;  to  regulate  the  practice  of  medi- 
cine in  Nebraska,  etc.,  is  as  much  directed  against  any  unauthorized  person  who 
shall  operate  on,  profess  to  heal,  or  prescribe  for,  or  otherwise  treat  any  physical 
or  mental  ailment  of  another,  as  against  one  who  practices  "medicine,  surgery, 
and  obstetrics,"  as  those  terms  are  usually  and  generally  understood.  And  it  now 
declares  that  with  the  rule  announced  in  that  case  it  is  fully  satisfied,  although  it 
is  possible  that  the  decisions  of  some  other  courts  are  in  conflict  with  it.  The 
doctrine  declared  in  that  case,  it  goes  on  to  say,  will  carry  out  the  legislative 
intent  and  effect  the  object  of  the  statute,  which  is  "to  protect  the  afflicted  from 
the  pretentions  of  the  ignorant  and  avaricious,"  no  matter  whether  the  person  pre- 
tending to  heal  bodily  or  mental  ailments  does  or  does  not  profess  to  "follow 
beaten  paths  and  established  usages."  In  construing  statutes  effect  should  be 
given  to  the  intention  of  the  legislature.  But  it  was  argued  that  osteopaths  do 
not  profess  to  treat  any  physical  or  mental  ailment,  that  they  merely  seek  to 
remove  the  cause  of  such  ailment  or  disease,  and,  therefore,  do  not  come  within 
the  definition  mentioned.  The  answer  to  that  is  that  it  is  apprehended  that  all 
physicians  have  the  same  object  in  view,  namely,  the  restoring  of  the  patient  to 
sound  bodily  or  mental  condition,  and  whether  they  profess  to  attack  the  malady 
or  its  cause,  they  are  treating  the  ailment  as  the  word  is  popularly  understood. 
Wherefore,  the  court  says  that  it  can  see  no  good  reason  why  the  practice  of 
osteopathy  does  not  fall  within  the  provisions  of  the  statutes  under  which  this 
prosecution  was  instituted,  as  dearly  so  as  do  ordinary  practitioners,  or  those 
who  profess  to  heal  by  what  is  known  as  Christian  science.  Nor  does  it  consider 
that  the  offense  is  without  a  penalty  under  the  Nebraska  statutes.  It  holds  that 
one  who  practices  what  is  known  as  osteopathy,  without  obtaining  a  certificate 
from  the  State  Board  of  Health,  is  a  practitioner  of  medicine  as  defined  by 
article  1,  chapter  55,  Compiled  Statutes,  and  is  liable  to  the  penalty  prescribed 
specifically  for  practicing  medicine  without  a  license.  It  further  holds  that  "sur- 
gery and  obstetrics,"  as  those  terms  are  popularly  understood,  are  embraced  in 
the  title  of  an  act  to  regulate  the  practice  of  medicine,  and  hence  that  the  act 
in  question  is  not  invalid  on  the  ground  that  the  definition  of  a  practitioner  of 
medicine  contained  therein  and  quoted  above  is  broader  than  the  title  of  the 
act,  which  is  "to  regulate  the  practice  of  medicine."  Then,  it  holds  that  the 
act  is  not  void  as  being  prohibitive  in  its  effect,  its  attempt  being  to  regulate 
the  practice  of  the  art  of  healing  and  it  being  prohibitive  only  as  to  those  who 
have  not  been  duly  licensed  by  the  State  Board  of  Health  to  practice  the  art 
of  healing.  Last  of  all,  it  holds  that  several  misdemeanors  of  the  same  kind,  as 
for  example  charging  violations  of  such  a  statute,  may  be  set  forth  in  as  many 
counts  of  an  information,  and  the  prosecutor  is  not  required  to  elect  upon  which 
count  he  will  proceed. 

SUFFICIENT   INFORMATION   AGAINST   ILLEGAL   PRACTITIONER 

Sofield  v.  State,  61  ~Nel.  600;  85  N.  W.  8Jt0 

1901 

The  Supreme  Court  of  Nebraska  holds  that  the  information  on  which  trial  was 
had  in  this  case  was  not  defective  in  substance  although  it  omitted  to  state  the 
name  or  names  of  the  persons  upon  whom  the  accused,  who  was  charged  with  the 
crime  of  practicing  medicine  without  a  license  or  certificate  so  to  do,  practiced  his 
profession.     The  court  holds  that  the  averment  that  he  "did  unlawfully  practice 


387 

medicine  to  divers  and  sundry  persons,  whose  names  are  to  the  countj  attorney 
unknown,"  was  sufficient.  Of  course,  it  says,  the  county  attorney  was  not  required 
to  set  out  in  the  information  the  names  of  the  persons  the  accused  treated,  when 
such  persons  were  unknown  to  such  officer,  and  he  BO  pleaded  in  the  information. 
The  case,  it  explains,  is  distinguishable  from  one  where  the  information  omitted 
the  names  of  the  persons  treated,  and  failed  to  allege  that  their  names  were 
unknown  to  the  county  attorney.  Furthermore,  it  holds  that  an  information  need 
not  negative  the  exceptions  of  a  statute  which  are  not  descriptive  of  the  offense, 
and  that,  therefore,  the  information  in  question  was  not  defective  in  failing  to 
contain  any  negative  averment  relative  to  the  exceptions  contained  in  section  17 
of  chapter  55  of  the  Compiled  Statutes  of  Nebraska  bearing  on  this  offense. 


CORPORATIONS   INCAPABLE  OF   PRACTICING  MEDICINE 
State  Electro-Medical  Institute  v.  State,  1.'t  Xeb.  JjfOj  10S  N.  W.  1078. 

1905 

This  was  an  information  in  the  nature  of  quo  warranto  to  prevent  the  defend- 
ant from  doing  business  in  this  state.  The  defendant  is  a  foreign  corporation,  and 
has  an  office  in  the  city  of  Omaha,  and  transacts  its  business  there.  It  is  engaged 
in  the  business  of  practicing  medicine  for  hire,  and  it  contracts,  and  throughits 
agents  assumes  for  hire,  to  practice  medicine,  prescribe  for  and  treat  the  physical 
ailments  of  human  beings.  The  "defendant  advertises  in  several  papers  published 
in  the  city  of  Omaha  that  it  treats  various  physical  diseases.  The  answer  admits 
that  the  plaintiff  advertises  to  treat  diseases  for  hire;  is  now  conducting  its  busi- 
ness by  physicians  who  were  duly  licensed  to  practice  medicine;  that  the  defend- 
ant does  not  practice  medicine,  but  that  said  business  is  conducted  solely  by  duly 
licensed  and  practicing  physicians  in  the  employ  of  the  defendant.  The  reply 
denied  this  allegation,  but  it  is  admitted  in  the  stipulation  of  facts  upon  which 
the  case  was  tried.     The  Code  of  Civil  Procedure. 

The  contention  is  that  this  defendant  has  violated  chapter  55  of  the  Compiled 
Statutes  of  1901,  which  is  "An  act  to  establish  a  state  board  of  health,  to  regu- 
late the  practice  of  medicine,"  etc.  It  is  conceded  that  this  defendant  has  not 
obtained  and  could  not  obtain  a  license  in  compliance  with  this  provision  of  the 
law.  While  a  corporation  is  in  some  sense  a  person,  and  for  many  purposes  is  so 
considered,  yet  it  is  not  such  a  person  as  can  be  licensed  to  practice  medicine. 
This  position  seems  to  be  maintained  by  both  parties.  The  defendant,  therefore, 
not  having  a  license,  has  violated  this  law,  if  it  has  practiced  medicine,  surgery, 
or  obstetrics,  or  any  of  the  branches  thereof,  within  the  meaning  of  the  statute. 
The  statute  attempts  to  define  what  is  meant  by  "practicing  medicine."  There 
was  no  necessity  of  legislation  to  prohibit  corporations,  as  such,  from  practicing 
medicine.  It  is  impossible  to  conceive  of  an  impersonal  entity  "judging  the  nature, 
character  and  symptoms  of  the  disease,"  or  "determining  the  proper  remedy,"  or 
giving  or  prescribing  the  application  of  the  remedy  to  the  disease.  Members  of 
the  corporation,  or  persons  in  its  employ,  might  do  these  things,  but  the  corpora- 
tion itself  is  incapable  of  doing  them.  The  qualification  of  a  medical  practitioner 
is  personal  to  himself.  The  intention  of  the  law  is  that  one  who  undertakes  to 
judge  the  nature  of  a  disease,  or  to  determine  the  proper  remedy  therefor,  or  to 
apply  the  remedy,  must  have  certain  personal  qualifications;  and,  if  lie  does 
these  things  without  having  complied  with  the  law,  he  is  subject  to  its  penalties. 
Making  contracts  is  not  practicing  medicine.  Collecting  the  compensation  there- 
for is  not  practicing  medicine,  within  the  meaning  of  this  statute.  No  profes- 
sional qualifications  are  requisite  for  doing  these  things. 

It  is  urged  that  no  one  who  is  not  himself  licensed  to  practice  can  be  benefi- 
cially interested  in  the  practice  of  medicine,  and  that  it  is  contrary  to  public 
policy,  and  therefore  unlawful,  for  a  person  or  corporation  not  competent  to  prac- 
tice medicine  to  be  beneficially  interested  in  such  practice,  and  to  be  allowed  to 
receive  compensation  for  the  services  of  one  who  is  qualified.  This  question  and 
others  that  are  discussed  in  the  brief  in  this  case  are  more  fully  considered  in 
the  opinion  in  the  case  of  the  Electro-Medical  Institute  v.  Platner. 


388 

It  seems  clear  that  this  defendant  has  not  practiced  or  attempted  to  practice 
medicine,  within  the  meaning  of  this  statute,  and  is  not  guilty  of  the  violation  of 
the  law  charged  against  it.  The  judgment  of  the  district  court  is  therefore 
reversed,  and  the  cause  dismissed. 


CONTRACT  FOR  MEDICAL  SERVICES  BY  CORPORATION  IS  VALID 

State  Electro-Medical  Institute  v.  Platner,  74  Neb.  23;  103  N.  W.  1019 

1905 

This  plaintiff  made  a  contract  in  writing  with  the  defendant  whereby  it  agreed 
"to  render  professional  services  to  the  party  of  the  second  part  until  the  party  of 
the  second  part  shall  be  cured  of  a  certain  disease  as  appears  on  the  books  of  the 
party  of  the  first  part."  And  the  defendant  agreed  to  pay  for  the  services  and  to 
"follow  directions  carefully  and  take  the  medicine  and  remedies  prescribed  from 
time  to  time  by  the  party  of  the  first  part,  until  a  complete  cure  is  effected." 
This  contract  was  signed  by  the  defendant  and  was  also  signed,  "State  Electro- 
Medical  Institute,  Physician  in  Charge."  In  the  district  court  the  plaintiff  set  out 
the  foregoing  contract  and  alleged  that  it  was  doing  business  "by  and  through 
duly  licensed  and  practicing  physicians,"  and  was  organized  for  this  purpose,  and 
alleged  that  by  and  through  L.  H.  Staples,  a  duly  licensed  and  practicing  physi- 
cian, the  plaintiff  had  partially  performed  the  contract,  and  that  the  physician 
had  been  ready  at  all  times,  and  is  now  ready  and  willing,  to  perform  all  the 
duties  and  obligations  imposed  by  the  terms  of  the  contract,  but  the  defendant  has 
refused  to  perform,  etc.  The  plaintiff  asks  judgment  for  the  amount  due  it  upon 
the  contract.  There  was  a  general  demurrer  to  this  petition  upon  the  ground  that 
it  did  not  state  facts  sufficient  to  constitute  a  cause  of  action,  and  also  upon  the 
ground  that  "said  petition  shows  that  the  plaintiff  is  a  corporation;  that  the  con- 
tract forming  the  basis  of  the  plaintiff's  action  is  for  medical  services,  and  the 
plaintiff  is  incapacitated  to  render  or  contract  to  render  or  to  sue  for  medical 
services."  This  demurrer  was  sustained,  and  judgment  entered  for  the  defendant, 
which  judgment  is  brought  here  for  review. 

It  is  contended  that  a  contract  for  medical  services  made  by  a  corporation, 
to  be  performed  by  a  licensed  physician,  is  void,  and  that  the  corporation  cannot 
recover  upon  such  contract.  The  court  holds  that  to  make  contracts  such  as  the 
one  in  question  here,  and  to  collect  compensation  thereunder,  do  not  constitute 
practicing  medicine,  as  those  words  are  used  in  this  statute,  and  that  therefore 
it  is  not  forbidden  to  do  these  things  without  first  being  licensed. 

The  first  ground  set  forth  in  the  brief  is  that  no  person  may  practice  medicine 
in  the  name  of  another,  or  under  the  direction  and  supervision  of  another.  The 
qualifications  of  one  who  practices  medicine  are  personal  qualifications,  and  it  is 
the  one  who  actually  performs  the  surgical  operation  or  administers  the  remedy 
that  must  be  qualified  and  licensed  under  the  statute.  The  fact  that  the  doctor 
who  makes  the  contracts,  and  who  takes  the  patients  and  undertakes  to  treat 
them,  is  duly  qualified  and  licensed,  is  immaterial. 

The  next  point  urged  is  that  "no  person  may  profit  by  or  enforce  an  agreement 
for  the  practice  of  medicine,  except  he  is  qualified  and  licensed  for  the  practice  of 
the  profession."  This  construction  of  the  act  would  prevent  action  in  the  name 
of  any  assignee  of  a  physician's  claim  for  his  services,  whether  such  assignee 
might  be  a  corporation,  a  copartnership,  or  an  individual.  Ordinarily  a  disquali- 
fying statute  is  strictly  construed.  Unless  its  provisions  plainly  disqualify  the 
plaintiff  from  maintaining  the  action,  it  ought  not  to  be  given  that  effect.  There 
is  no  language  of  the  statute  in  question  that  can  be  so  construed,  nor  is  there 
anything  in  the  spirit  and  purpose  of  the  legislation  that  requires  such  construc- 
tion. The  statute  under  consideration  cannot  be  construed  to  prevent  licensed 
practitioners  of  medicine  to  form  a  corporation,  and  to  make  contracts  with  their 
patients  in  the  corporate  name.  If  one  or  more  of  the  incorporators  should  not  be 
licensed  physicians,  the  case  would  not  be  different.  The  person  who  practices 
medicine — that  is,  who  undertakes  to  judge  the  nature  of  disease,  or  to  determine 
the  proper  remedy  therefor,  or  to  apply  the  remedy — must  have  the  necessary 
qualifications  and  obtain  license.  No  recovery  can  be  had  for  the  services  of  any 
physician  who  is  not  so  qualified. 


389 

Making  such  contracts  as  the  one  involved  herein,  and  collecting  compensation 

for  services  of  qualified  and  licensed  physicians  rendered  pursuant  to  auch  con- 
tracts, do  not  constitute  practicing  medicine,  and  are  not  in  violation  of  the 
statute  or  public  policy. 

The  judgment  of  the  district  court  is  therefore  reversed  and  the  cause  remanded 
for  further  proceedings. 

FEE  COMPENSATION  OF  SECRETARY  DOES  NOT  INVALIDATE  ACT 

Munk  v.  Frinlc,  75  Neb.  172;  106  X.  W.  425 
1905 

The  supreme  court  holds  that  the  act  of  1891  creating  a  state  board  of  health  is 
not  rendered  void  by  the  fact  that  it  provides  for  compensation  of  its  secretaries 
by  fees  which  are  not  required  to  be  accounted  for  or  paid  into  the  state  treasury. 

A  complaint  filed  before  the  State  Board  of  Health  for  the  purpose  of  pro- 
curing an  order  revoking  the  license  of  a  physician  is  sufficient  if  it  informs  the 
accused,  not  only  of  the  nature  of  the  wrong  laid  to  his  charge,  but  of  the  par- 
ticular instance  of  its  alleged  perpetration.  By  section  580  of  the  Code  of  Civil 
Procedure  the  district  court  is  given  jurisdiction  to  review,  by  proceedings  in 
error,  an  order  of  the  State  Board  of  Health  revoking  the  license  of  a  physician. 

The  supreme  court  commissioners  in  writing  the  opinion  of  this  case  say  that  a 
licensee  does  not  necessarily  have  a  property  or  contractual  right  in  his  privilege, 
so  as  to  render  a  revocation  of  his  license  a  judicial  act,  but  they  think  that  the 
legislature  confers  a  quasi  property  or  contractual  right  by  providing  that  revoca- 
tion shall  be  only  for  specified  cause  or  causes  arising  out  of  the  conduct  of  the 
licensee  and  analogous  to  a  forfeiture,  the  declaration  of  which  is  essentially  a 
judicial  act.  This  view  does  not,  of  course,  involve  a  limitation  of  the  power  of 
the  legislature  to  revoke  the  license  by  direct  enactment. 


PROCEDURE    BEFORE    STATE    BOARD    OF   HEALTH    AND    REVOCATION 
OF  LICENSE   FOR  CRIMINAL  ABORTION 

Munk  v.  Frink,  81  Xel.  631;  116  V.  W.  525 
1908 

The  supreme  court  holds  that  a  complaint  filed  before  the  State  Board  of 
Health  for  the  purpose  of  procuring  an  order  revoking  the  license  of  a  physician 
is  sufficient  if  it  informs  the  accused,  not  only  of  the  nature  of  the  wrong  laid  to 
his  charge,  but  of  the  particular  instance  of  its  alleged  perpetration.  And  in  a 
trial  under  such  a  complaint  it  is  not  necessary  that  the  proceedings  should  be 
conducted  with  that  degree  of  exactness  which  is  required  on  a  trial  for  a  criminal 
offense  in  an  ordinary  tribunal  of  justice. 

Proceedings  by  the  State  Board  of  Health  to  revoke  a  physician's  license  for 
cause  are  summary  in  their  nature  and  are  triable  before  the  board  without  the 
intervention  of  a  jury.  A  trial  and  conviction  in  a  court  of  competent  jurisdiction 
is  not  a  condition  precedent  to  a  proceeding  by  the  State  Board  of  Health  against 
a  physician  to  revoke  his  license  for  any  of  the  causes  provided  by  statute. 

The  power  conferred  on  the  State  Board  of  Health  to  revoke  a  physician's 
license  for  cause  is  an  administrative  and  not  a  judicial  function,  and  the  limit  of 
judicial  interference  in  such  cases  is  to  protect  the  accused  in  his  right  to  a  hear- 
ing on  specific  charges  after  reasonable  notice  of  the  time  and  place  of  hearing  has 
been  given  and  a  full  opportunity  afforded  him  to  present  his  defense  to  such 
charges  and  against  a  conviction,  unless  on  competent  evidence.  And  in  such  a 
case,  when  the  State  Board  of  Health  has  so  proceeded  and  taken  testimony,  and 
has  given  the  respondent  full  opportunity  to  appear  in  person  or  by  counsel  to 
cross-examine  the  witnesses  against  him,  and  to  introduce  testimony  in  his  own 
behalf,  and  has  passed  on  the  sufficiency  of  the  evidence  so  taken,  the  findings  of 
the  board  as  to  the  sufficiency  of  the  evidence  to  sustain  the  charges  will  be 
upheld,  unless  it  appears  that  there  is  no  evidence  to  sustain  such  findings. 


390 

In  a  hearing  by  the  State  Board  of  Health  of  charges  against  a  physician  for 
procuring  or  aiding  or  abetting  in  procuring  a  criminal  abortion,  it  is  not  neces- 
sary to  either  allege  or  prove  that  the  woman  had  become  quick.  It  is  not  the 
murder  of  a  living  child  which  constitutes  the  offense,  but  the  destruction  of 
gestation,  where  such  destruction  is  not  necessary  in  order  to  preserve  the  life  of 
the  woman.  The  moment  the  womb  is  instinct  with  embryo  life  and  gestation  has 
begun  the  crime  may  be  perpetrated. 

The  supreme  court  commissioners  say  in  this  case  that  the  section  of  the 
statute  under -which  the  proceedings  in  this  case  were  had  defines  "unprofessional 
and  dishonorable  conduct,"  and  includes  "the  procuring  or  aiding  or  abetting  in 
procuring  a  criminal  abortion"  in  that  definition.  This  definition  was  assailed  as 
"a  profound  legal  bizarrerie,"  counsel  saying  that  the  author  of  that  definition 
"should  be  immortalized  as  an  apostle  of  the  incongruous."  But  the  commis- 
sioners are  unable  to  concur  in  this  severe  criticism  of  the  author  of  the  section 
of  the  statute  under  consideration  or  of  the  definition  referred  to.  If  "the  pro- 
curing or  aiding  or  abetting  in  procuring  a  criminal  abortion"  is  not  "unprofes- 
sional or  dishonorable  conduct"  in  one  holding  a  certificate  entitling  him  to  prac- 
tice medicine,  then  the  commissioners  are  unable  to  conceive  of  any  conduct  of 
which  such  person  might  be  guilty  which  could  be  called  unprofessional  or  dis- 
honorable. 

With  regard  to  the  contention  that  a  sufficient  complaint  of  unprofessional  or 
dishonorable  conduct  within  the  meaning  of  the  statute  must,  in  apt  terms,  charge 
the  criminal  destruction  by  the  accused,  either  as  a  principal  or  accessory,  of  a 
vitalized  human  fetus,  the  commissioners  say  that  authorities  are  not  wanting  to 
sustain  this  contention,  but  the  doctrine  of  the  Supreme  Court  of  Pennsylvania, 
in  Mills  v.  Commonwealth,  13  Pa.  632,  is  preferred.  If  the  theory  contended  for 
should  be  sustained,  it  would  be  practically  impossible  to  convict  an  abortionist 
for  any  abortion,  or  attempted  abortion,  during  the  first  five  months  of  pregnancy, 
for,  if  gestation  had  not  proceeded  to  the  period  of  quickening,  there  would  be  no 
way  of  disputing  the  testimony  of  the  abortionist  that  what  he  removed  from  the 
woman  was,  in  fact,  a  dead  fetus.  Even  the  woman  herself  could  not  dispute  this 
testimony  prior  to  pulsation  following  the  quickening  period.  It  would  be  giving 
unlimited  license  to  the  abortionist  to  ply  his  nefarious  calling,  provided  he  con- 
fined his  criminal  operations  to  the  early  months  of  gestation.  The  commissioners 
prefer  to  be  in  line  with  the  Supreme  Court  of  Pennsylvania,  and  say,  although  it 
has  been  so  held  in  Massachusetts  and  some  other  states,  it  is  not  the  law  "in 
Nebraska,"  and  never  ought  to  have  been  the  law  anywhere. 

No  error  is  found  in  this  case  in  the  revocation  of  the  appellant  Munk's  license 
as  a  physician. 

In  the  companion  case  of  Walker  v.  McMahan,  the  commissioners  say  that  it 
was  true  that  the  appellant  Walker  acted  as  assistant  only  to  Dr.  Munk  in  per- 
forming the  operations  complained  of,  but  the  evidence  showed  such  a  concert  of 
action  between  these  two  doctors  in  these  and  other  cases  of  a  similar  nature,  and 
such  a  ready  and  unquestioning  participation  by  the  appellant  Walker  with  Dr. 
Munk  in  the  performance  of  the  two  operations  involved  that  there  was  no  escape 
from  the  conclusion  that  if  one  were  guilty  both  were. 


RIGHTS  IN   LICENSES   AND   POWERS   WITH  REFERENCE   TO  REVOCA- 
TION OF  SAME 

Matheics  v.  Eedlund  and  the  State  Bank  of  Nebraska,  82  Neb.  825;  119  N.  W.  11 

1908 

This  case  was  originally  brought  to  revoke  the  license  of  Mathews  as  a  physi- 
cian. The  State  Board  of  Health  revoked  the  license,  and  the  District  Court  of 
Lancaster  County  affirmed  its  action.  Then  this  appeal  was  taken,  wherein  the 
supreme  court  affirms  the  judgment  of  the  district  court,  sustaining  the  revocation 
of  the  license. 


391 

The  supreme  court  holds  that  an  order  made-  by  the  State  Board  of  Health, 
under  Section  9800  and  following  sections  of  <  obbey's  Statutes  of  1007,  revoking 
for  cause  the  license  of  a  physician  to  practice  medicine,  suryery  and  obstetrics 
in  Nebraska,  may  be  reviewed  in  the  district  court  by  error  proceeding  under 
section  580  of  the  Cole  of  Civil  Procedure,  which  provides  that  a  judgment  ren- 
dered, or  final  order  made,  by  any  tribunal,  board  or  officer  exercising  judicial 
functions,  and  inferior  in  jurisdiction  to  the  district  court,  may  be  reversed, 
vacated  or  modified  by  the  district  court.  Said  sections  do  not  contravene  sec- 
tion 15,  article  3,  of  the  constitution  of  the  state  of  Nebraska,  nor  are  they 
repugnant  to  the  fourteenth  amendment  to  the  constitution  of  the  United  States. 

In  a  hearing  before  the  State  Board  of  Health  for  committing  a  criminal 
abortion  on  a  pregnant  woman  it  is  not  necessary  to  allege  or  prove-  that  -he  was 
in  any  stage  of  uterogestation,  but  simply  that  she  was  pregnant  of  a  vitalized 
embryo  or  fetus.  A  trial  and  conviction  in  a  competent  court  is  not  a  condition 
precedent  to  the  institution  and  prosecution  of  said  proceedings. 

In  case  the  secretaries  of  the  board  refuse  to  issue  subpoenas  for  witnesses  for 
the  defendant,  or  to  compel  witnesses  to  answer  material  questions  propounded 
by  him,  or  refuse  to  hear  argument,  that  conduct  will  not  be  considered  in  the 
district  court,  unless  the  defendant  requested  the  board  to  direct  its  secretaries  to 
comply  with  the  defendant's  requests,  and  said  board  improperly  refused  so  to  do. 
In  case  the  secretaries  and  the  board  find  against  the  defendant,  but  by  mistake 
or  oversight  the  record  does  not  evidence  their  said  action,  said  board  has  power 
to  correct  its  record  so  that  it  will  speak  the  truth,  even  though  error  proceedings 
are  then  pending  in  the  district  court. 

In  contested  proceedings  for  the  revocation  of  a  physician's  license  to  practice 
medicine,  it  is  within  the  discretion  of  the  State  Board  of  Health,  and  of  its  secre- 
taries, to  receive  affidavits  relating  to  relevant  facts  at  issue  in  said  hearing.  In 
said  proceedings,  if  it  appears  that  the  State  Board  of  Health  has  acted  within  its 
jurisdiction,  and  that  all  of  the  jurisdictional  facts  essential  to  uphold  its  final 
order  are  sustained  by  some  evidence  competent  for  that  board  to  consider,  its 
orders  will  be  upheld  in  error  proceedings  to  the  district  court,  and  on  appeal  to 
the  supreme  court. 

The  supreme  court  bases  its  decision  on  reasons  stated  therefor  by  the  supreme 
court  commissioners.  In  the  opinion  prepared  by  the  latter  they  say,  among  other 
things,  that  the  State  Board  of  Health  filed  a  motion  to  dismiss  this  case  for  want 
of  jurisdiction  of  the  court  to  review  the  board's  order  in  error  proceedings.  The 
argument  of  counsel,  although  forceful  and  learned,  urged  no  better  reasons  in 
favor  of  his  client's  contention  than  were  presented  in  Munk  v.  Frink,  75  Neb. 
172,  wherein  the  identical  point  was  considered  ana  decided  against  said  board. 
The  court  was  asked  to  overrule  Munk  v.  Frink  for  the  alleged  reasons  that  the 
board  is  not  inferior  in  jurisdiction  to  the  district  court;  that  in  said  proceedings 
it  exercises  administrative  functions  only,  and  that  its  orders  may  not  be  reviewed 
by  petition  in  error.  But  in  the  instant  case  the  legislature  selected  three  state 
officers  and  vested  them  with  power  to  subpoena  and  examine  witnesses,  to  take 
depositions  according  to  the  Code  and  to  determine  certain  facts.  While  sitting  as 
that  special  board,  their  functions  approximate  the  judicial,  and  they  are  as  well 
within  the  scope  of  section  580  of  the  Code  as  were  any  of  the  officers  referred  to 
in  the  Nebraska  cases  cited. 

It  was  urged  that  one  cannot  have  a  property  right  in  a  license  to  practice 
medicine;  that  it  is  within  the  police  power  to  name  the  conditions  on  which  such 
a  permit  shall  issue  and  may  be  enjoined,  and  that  the  holder  thereof  takes  the 
privilege  with  the  conditions  annexed  that  his  license  may  be  revoked  at  any  time 
by  the  power  that  gave  it.  There  is  much  force  in  the  argument,  and  many 
authorities  may  be  cited  to  sustain  it,  but  the  commissioners  are  of  opinion  that 
after  a  license  has  been  issued,  the  right  thereunder  to  practice  medicine  is  a 
valuable  right,  and  one  that  may  not  be  taken  away  without  good  cause;  that  if 
such  license  is  canceled  by  a  board  of  health,  it  must  be  on  proper  charges,  with 
opportunity  to  appear  and  defend  by  the  introducing  of  evidence  and  the  cross- 
examination  of  those  witnesses  who  testify  against  him  at  the  hearing.  The  hear- 
ing in  the  present  case  did  not  involve  the  determination  of  the  learning  or  profes- 
sional skill  of  the  defendant,  but  whether  he  had  performed  a  criminal  operation 
on  the  person  of  a  patient.    Under  the  circumstances  of  this  case  the  revocation  of 


392 

the  defendant's  license  was  analogous  to  a  forfeiture,  and  involved  the  exercise  of 
judicial  or  quasi  judicial  power,  within  the  meaning  of  section  580  of  the  Code. 

It  has  heen  uniformly  decided  in  numberless  cases  that  the  legislature  may 
regulate  the  practice  of  medicine,  and  require  practitioners  to  conform  to  those 
requirements,  or  in  default  thereof  cease  their  practice;  that  subsequent  legisla- 
tion may  impose  greater  burdens  on  a  practicing  physician,  and  that  thereby  he  is 
not  deprived  of  any  privilege  or  immunity  guaranteed  by  the  constitution. 


TEN  YEARS'  PRACTICE  EXEMPTION  NOT  UNCONSTITUTIONAL 

Ex  parte  Spinney,  10  Nev.  323 

1875 

The  Supreme  Court  of  Nevada  holds  that  the  provision  in  the  act  of  that  state 
entitled  "An  act  to  prevent  the  practice  of  medicine  and  surgery  by  unqualified 
persons"  to  the  effect  that  no  portion  of  this  act  shall  apply  to  those  who  have 
practiced  medicine  or  surgery  in  this  state  for  a  period  of  ten  years  next  preceding 
the  passage  of  this  act  was  not  unconstitutional,  or,  according  to  one  opinion,  was 
not  unconstitutional  when  the  words  "next  preceding  the  passage  of  this  act"  were 
omitted. 


TEMPORARY   CERTIFICATES   ABOLISHED   BY  PASSAGE   OF  NEW   LAW 

State  v.  Lee,  28  Nev.  380;  82  Pac.  229 

1905 

The  Supreme  Court  holds  that  that  portion  of  the  act  of  1899  providing  for 
the  issuance  of  temporary  certificates  of  the  secretary  of  the  State  Board  of 
Medical  Examiners  has  no  longer  any  force  as  a  part  of  the  law  of  that  state 
regulating  the  practice  of  medicine  and  surgery.  It  was  argued  that  for  several 
reasons  there  had  been  no  repeal  of  the  1899  provision  by  the  act  of  1905.  But, 
taking  the  act  of  1905  as  a  whole,  the  court  thinks  it  clearly  manifest  that  it  was 
the  intention  of  the  legislature  to  provide  that  no  one  should  be  permitted  to 
practice  medicine,  surgery  or  obstetrics  in  the  state,  except  after  obtaining  a  license 
so  to  do  from  the  State  Board  of  Medical  Examiners.  Lastly,  it  says  that  it  was 
argued  that,  as  only  two  regular  meetings  of  the  board  are  provided  for  per 
annum,  a  construction  of  the  statute  as  here  given  would  impose  a  great  hardship 
on  those  seeking  to  enter  the  practice  between  such  regular  meetings,  and  to 
impute  such  intention  to  the  legislature  would  be  unfair  to  that  body.  Doubtless 
the  legislature  in  the  passage  of  the  act  of  1905  was  considering  the  public  good, 
rather  than  the  convenience  of  private  individuals ;  but  the  legislature  also  doubt- 
less intended  to  obviate  the  inconvenience  that  applicants  to  practice  might  experi- 
ence from  being  unable  to  longer  obtain  temporary  certificates  by  the  provision,  not 
found  in  the  act  of  1899,  permitting  special  meetings  of  the  board  to  be  held  at 
the  call  of  the  president  of  the  board  on  two  weeks'  published  notice. 


TRIAL  MUST  PRECEDE  REFUSAL  TO  GRANT  LICENSE 

Gage  v.   Censors  of  the  ~New  Hampshire  Eclectic  Medical  Society,  63  N.  H.  92; 

56  Am.  Rep.   492 

1884 

The  Supreme  Court  of  New  Hampshire  says  that  the  statute  required  every 
medical  society,  organized  under  the  laws  of  that  state,  to  elect  a  board  of 
censors  consisting  of  three  members.  Authority  was  conferred  upon  the  board 
to  examine  and  license  persons  to  practice  medicine,  surgery,  or  midwifery.  It 
was  made  the  duty  of  the  board  to  issue  licenses  without  examination  to  all 
persons  who  furnished  evidence  by  diploma  from  some  medical  school  authorized 
to  confer  degrees  in  medicine  and  surgery,  when  the  board  was  satisfied  that 
the  person  presenting  such   diploma  had   obtained   it  after   pursuing  some   pre- 


393 

scribed  course  of  study  and  upon  due  examination.  The  board  had  power,  upon 
due  notice  and  hearing,  to  revoke  any  license  granted  by  it,  when  improperly 
obtained,  or  when  the  holder  had,  by  conviction  for  crime  or  from  any  other 
cause,  ceased  to  be  worthy  of  public  confidence. 

The  court  holds  that,  under  such  law,  the  board  of  censors  could  not  refuse 
to  grant  a  license  to  practice  medicine  on  any  other  ground  than  the  applicant's 
lack  of  medical  knowledge,  without  a  trial. 

Character,  no  less  than  medical  education,  skill,  and  experience,  is,  within 
the  meaning  of  the  statute,  a  qualification  for  a  competent  physician  or  surgeon. 
One  who  does  not  possess  the  requisite  qualifications  cannot  be  worthy  of  public 
confidence.  But  a  license  once  granted  cannot  be  revoked  except  upon  due  notice 
and  a  hearing.  The  holder  is  given  an  opportunity  to  meet  charges  and  evidence 
tending  to  show  his  unfitness.  The  same  considerations  that  forbid  the  revocation 
of  a  license  except  upon  notice  and  a  hearing,  also  require  that  the  applicant  for 
a  license  who  possesses  the  requisite  medical  qualifications  shall  not  be  denied  a 
license  without  a  hearing  on  the  question  whether  he  is  in  other  respects  worthy 
of  public  confidence. 

The  plaintiff  was  exempted  by  the  statute  from  the  examination  which  would 
be  required  if  he  had  no  diploma.  But  the  legal  meaning  of  the  statute  did  not 
require  the  issue  of  a  license  which  should  be  immediately  revoked  for  want  of 
other  qualifications  than  medical  and  surgical  skill.  A  license  might  be  refused 
if,  on  other  grounds,  upon  due  notice  and  hearing,  he  was  fairly  proved  by  the 
defendants  to  be  unworthy  of  public  confidence. 


DISCRIMINATION  BASED  ON  RESIDENCE  UNCONSTITUTIONAL 
State  v.  Pennoyer,  65  N.  H.  113;  IS  Atl.  878;  5  L.  R.  A.  709 

1889 

The  court  quotes  from  the  statutes  to  the  effect  that  all  physicians  except 
those  who  practiced  all  the  time  between  Jan.  1,  1875,  and  Jan.  1,  1879,  and 
during  that  period  did  not  remove  from  one  town  to  another,  are  required  to 
obtain  a  license  and  to  pay  therefor  five  dollars,  or  one  dollar,  according  as  it 
may  be  issued  upon  examination  or  upon  diploma. 

The  iaw  cannot  discriminate  in  favor  of  one  citizen  to  the  detriment  of 
another.  The  principle  of  equality  pervades  the  entire  constitution.  The  bill 
of  rights  declares  expressly  that  all  government  is  "instituted  for  the  general 
good."  All  the  declarations  of  right  are  imbued  with  the  same  spirit.  With 
them  the  body  of  the  constitution  is  in  full  conformity.  To  secure  to  all  as 
perfect  equality  of  privelege  and  of  burden  as  human  wisdom  permits  was  the 
chief  end  sought  by  the  framers  of  the  instrument.  To  this  all  other  purposes 
were  incidental  and  subordinate. 

The  preservation  of  the  life  and  health  of  the  people  is  one  of  the  chief 
ends  of  government.  The  power  of  the  legislature  to  regulate  the  practice  of 
medicine  by  general  laws,  applicable  to  all  who  engage  in  it,  is  as  unquestionable 
as  its  authority  to  adopt  measures  tending  to  suppress  the  sources  of  disease, 
to  avert  the  spread  of  contagion,  prevent  the  adultei'ation  of  provisions,  the  sale 
of  unwholesome  food,  and  to  legislate  in  various  other  particulars  for  the  protec- 
tion of  the  public  health.  The  purpose  of  the  statute  is  to  protect  the  public 
from  the  imposture  and  fraud  of  quacks  and  charlatans.  To  this  end,  all  who 
practice  medicine,  and  have  not  either  obtained  a  license  or  resided  and  practiced 
in  some  one  town  of  the  state  during  the  prescribed  period,  are  subjected  to  a 
fine.  Practitioners  are  divided  into  two  classes :  ( 1 )  Those  who  have,  and 
(2)  those  who  have  not,  resided  continuously  in  some  one  town  of  the  state 
during  the  four  years  beginning  January  1,  1S75.  The  atter  class  must, 
while  the  former  need  not,  pay  five  dollars,  or  one  dollar,  each,  as  the  case  may  be, 
for  a  license,  in  order  to  continue  their  business.  If  all  physicians  alike,  as  well 
those  who  have  as  those  who  have  not  resided  and  practiced  during  the  specified 
period  in  a  single  town,  were  required  to  procure  and  pay  for  a  license,  it  may  be 
that  the  statute  would  be  open  to  no  constitutional  objection.  Whether  it  would 
or  would  not  is  not  now  the  question.     The  present  objection  is  not  to  the  rule  of 


394 

evidence  by  which  the  statute  requires  qualification  to  practice  to  be  determined. 
It  is  not  that  residence  and  practice  during  the  specified,  time  in  one  place  is 
made  sufficient  evidence  of  fitness — equivalent  to  a  diploma — rendering  an  exam- 
ination unnecessary.  It  is  that,  of  those  physicians  who  are  declared  by  the 
statute,  or  under  its  provisions  are  found,  qualified  to  practice,  some  are,  and 
others  are  not,  subjected  to  the  burden  of  obtaining  a  license.  Exemption  from 
the  burden  is  made  to  depend  not  on  integrity,  education,  and  medical  skill,  but 
upon  a  continuous  dwelling  in  one  place  for  a  certain  time.  It  is  an  arbitrary 
discrimination,  permitting  some  and  forbidding  others  to  carry  on  their  business, 
without  regard  to  their  competency,  or  to  any  material  difference  in  their  situa- 
tion. The  test  is  not  merit,  but  unchanged  residence.  For  the  right  to  continue 
the  pursuit  of  his  profession,  one  physician  is  not,  while  another,  his  neighbor — 
who  may  be  his  equal  or  superior  in  learning,  experience,  and  ability — is  required 
to  pay  five  dollars.  This  is  not  the  equality  of  the  constitution.  The  magnitude  " 
of  the  unequal  burden  is  not  material.  If  any  inequality  were  permissible,  the 
discrimination  might  be  made  prohibitory,  and  a  monopoly  of  the  business  given 
to  the  physicians  who  have  resided  in  a  town  or  city  for  a  specified  time.  Indict- 
ment quashed. 

RIGHT  OF  APPLICANT  FOE  REGISTRATION  TO  HEARING 

Hart  v.  Folsom,  10  N.  H.  213;  4~  Atl.  603 

1900 

Section  13  of  chapter  63  of  the  New  Hampshire  Laws  of  1897  provides  that 
"every  person  who  is  a  practitioner  of  medicine  and  surgery  in  this  state  prior  to 
the  passage  of  this  act  shall  be,  upon  satisfactory  proof  thereof  to  the  regent  and 
upon  the  payment  of  a  fee  of  one  dollar,  entitled  to  registration,"  and  a  certificate 
of  the  facts  which  shall  entitle  him  to  practice  medicine.  An  applicant  furnished 
statements  of  three  residents  to  the  effect  that  he  attended  them  as  a  physician 
prior  to  the  passage  of  the  act,  and  a  certificate  of  the  city  clerk  that  he  had 
certified  to  a  death  in  1896.  His  application,  however,  was  denied  because  he  did 
not  comply  with  a  rule  of  the  regent  requiring  the  applicant  to  furnish  certificates 
of  a  member  of  one  of  the  medical  societies  mentioned  in  the  act  and  of  two  well- 
known  citizens  that  he  was  a  practitioner  of  medicine  and  surgery.  Now,  a  prac- 
titioner of  medicine  and  surgery  is  a  physician  and  surgeon  who  habitually  holds 
himself  out  for  the  practice  of  the  profession.  But  the  language  quoted,  the  court 
thinks,  raises  the  question  of  whether  it  is  enough  for  the  applicant  to  show  that 
he  had  been  such  a  practitioner  in  the  state  at  some  time  in  the  past,  or  whether 
he  must  show  that  he  was  one  when  the  act  was  passed.  The  language,  it  says, 
seems  to  refer  to  the  present  time — "every  person  who  is  a  practitioner" — and, 
although  these  words  are  qualified  by  the  expression  "prior  to  the  passage  of  this 
act,"  it  holds  that  they  cannot  reasonably  be  held  to  refer  to  persons  who  had  been 
practitioners,  but  had  ceased  to  be  such  when  the  act  was  passed.  So  it  thinks 
that  a  fair  construction  of  the  language  is  that  only  those  physicians  and  surgeons 
who  were  in  practice  in  the  state  when  the  act  was  passed  are  entitled  to  registra- 
tion, a  view  which  it  believes  is  strengthened  by  a  consideration  of  the  purpose  of 
the  act.  Then,  it  holds  that  it  is  the  duty  of  the  regent  to  issue  a  license  to  each 
applicant  who  comes  within  the  provision  of  the  act.  Whenever  application  is 
made  under  section  13,  the  regent  must  determine  whether  the  applicant  is  a 
physician  and  surgeon,  and  whether  he  was  engaged  in  practice  when  the  act  was 
passed.  In  performing  this  duty  he  acts  in  a  judicial  capacity,  and  is  bound  to 
receive  and  consider  all  evidence  that  legally  bears  upon  the  questions.  If,  for  any 
reason,  the  applicant  is  unable  to  furnish  such  a  certificate  as  the  regent  may 
require,  the  fact  does  not  conclusively  show  that  the  applicant  does  not  possess 
the  necessary  qualifications.  Hence,  in  this  case,  while  it  denies  that  the  applicant 
was  entitled  to  a  writ  of  mandamus  to  compel  the  regent  to  issue  him  a  certificate 
to  practice  medicine,  the  court  holds  that  the  regent  should  give  the  applicant  a 
hearing,  and  admit  all  competent  evidence  bearing  upon  the  questions  at  issue.  If 
the  evidence  submitted  amounted  to  satisfactory  proof  that  the  applicant  was  a 
physician  and  surgeon  in  practice  in  the  state  at  the  time  of  the  passage  of  the 
act  he  should  be  registered;  if  not  his  application  should  be  denied. 


395 

A     PROFESSION    IS     PROPERTY— REGULATION     OF     PRACTICE 

State  v.  Chapman,  69  N.  J.  Lav;    ',6'i;  55  Ail.  94 

1903 

The  supreme  court  holds  that  a  calling,  business,  or  profession  chosen  and  fol- 
lowed is  property.  The  legislature  can  not  destroy  it  by  statute  without  pro- 
viding for  compensation,  any  more  than  it  can  authorize  the  taking  of  real  estate 
for  a  public  use  except  on  compensation.  But  it  is  within  the  power  of  the  state 
to  place  reasonable  regulations  on  the  business  or  calling  of  any  person.  The 
laws  regulating  dentistry  are  of  later  enactment  than  those  regulating  the  practice 
of  medicine,  but  the  principles  underlying  their  legality  are  the  same.  And  it 
is  within  the  power  of  the  state,  under  the  police  power,  to  impose  by  statute 
reasonable  restrictions  as  to  registration  and  the  obtaining  of  a  certificate  of 
authority  to  engage  in  the  practice  of  dentistry,  and  to  make  it  a  misdemeanor 
for  a  person  to  practice  without  first  obtaining  such  certificate.  The  New  Jersey 
act  of  March  17,  1898,  entitled  "An  act  to  regulate  the  practice  of  dentistry  in 
the  state  of  New  Jersey,  and  to  repeal  certain  acts  now  relating  to  the  same," 
is  not  an  act  taking  or  destroying  property,  but  is  a  reasonable  regulation  of  the 
practice  of  dentistry  in  that  state.  The  act  does  not  impair  vested  rights,  nor  is 
it  in  its  criminal  provisions  an  ex  post  facto  law. 


CONSTRUCTION  OF  STATUTE  AS  TO  "OTHER  AGENCY" 

State  v.  Herring,  10  N.  J.  Law  3'f;  56  Atl.  610 

1904 

The  supreme  court  holds  that  an  osteopath  whose  treatment  of  his  patient 
consists  simply  of  the  manipulation  of  the  body,  does  not  violate  that  provision 
of  the  act  of  May  22,  1894,  Section  8,  which  forbids  the  applying  of  "any  drug, 
medicine  or  other  agency  or  application"  by  an  unlicensed  person.  _  It  says  that 
the  phrase  "other  agency  or  application"  is  a  very  broad  one,  and,  in  its  general 
sense,  would  undoubtedly  include  the  use  of  the  hands.  But  it  is  conjoined  to 
the  terms  "drug"  and  "medicine,"  which  are  much  more  special;  and,  under  the 
maxim,  "Noscitur  a  sociis"  (the  meaning  of  a  word  is  or  may  be  known  from  the 
accompanying  words),  its  interpretation  should  be  such  as  will  confine  it  to  the 
class  in  which  its  special  associates  stand.  Moreover,  as  a  phrase  employed  ^o 
create  and  define  offenses  unknown  to  the  common  law,  it  must  be  strictly  con- 
strued. In  forbidding  an  unlicensed  person  to  apply  any  drug  or  medicine  for 
remedial  purposes,  the  legislature  plainly  contemplated  the  use  of  something  other 
than  the  natural  faculties  of  the  actor — some  extraneous  substance.  A  similar 
restriction  must  attach  to  the  more  general  terms  "agency"  and  "application," 
and  they  must  likewise  be  held  to  import  only  some  extraneous  substance. 


REGULATION    OF    PRACTICE    OF    MEDICINE    A    VALID    EXERCISE    OF 

POLICE  POWER 

In  re  Roe  Chung,  9  New  Mexico  130;  49  Pac.  952 
1897 

Application  for  a  writ  of  prohibition  was  made  to  the  court.  The  following 
questions  raised  by  the  counsel  for  petitioner  and  respondent  are  considered: 
( 1 )  Assuming  the  act  of  the  legislative  assembly  of  New  Mexico  "to  regulate 
the  practice  of  medicine,"  etc.,  approved  February  27,  1895,  to  be  a  rightful 
subject  of  legislation,  can  the  penalties  prescribed  be  legally  enforced?  (2)  Has 
a  justice  of  the  peace  court  jurisdiction  in  an  action  to  recover  the  penalty  for  a 
first  offense?  (3)  Does  it  appear  that  the  causes  the  trial  of  which  is  sought  to 
be  prohibited  relate  to  subsequent  offenses  ? 

While  some  attack  is  made  upon  this  class  of  legislation  as  invalid,  it  is  so 
well  established  that  it  is  not  only  a  rightful,  but  a  most  frequent,  subject  of 


396 

legislation,  that  the  court  concluded,  despite  such  attack,  to  assume  this:  The 
New  Mexico  statute  is  very  liberal  in  respect  to  the  requirements  for  obtaining 
a  certificate  legally  authorizing  the  holder  to  practice  medicine  in  this  territory, 
graduation  and  diploma  not  being  necessary  if  examination  satisfactory  to  the 
board  of  health  be  passed, — a  provision  more  liberal,  perhaps,  than  should  be  in 
a  matter  so  vital  to  the  interests  of  the  public,  to  whom  such  a  certificate 
accredits  the  holder.  It  is  objected  by  counsel  for  petitioner  that  there  is  a  pro- 
vision requiring  the  recovery  of  a  penalty  in  an  action  of  debt,  which  is  converted 
into  a  fine  in  proceedings  to  enforce  its  collection.  In  other  words,  they  say  that 
a  civil  action  eventuates  in  a  judgment  in  a  criminal  case.  The  reply  is  that 
such  a  statute  comes  under  the  police  power  of  the  state,  and  it  is  frequently 
the  case  that  imprisonment  is  embraced  as  a  part  of  the  judgment.  There  is  no 
inconsistency  between  recovery  and  enforcement  of  the  fine  which  prevents,  in  any 
sense,  their  standing  legally  together. 

The  last  inquiry  is:  Do  the  causes  whose  trial  is  sought  to  be  prohibited 
relate  to  subsequent  offenses?  If  they  do  affirmatively  appear  to  be  suits  or 
prosecutions  for  subsequent  offenses,  it  is  contended  that  nevertheless  the  plaintiff 
could  waive  demanding  more  than  the  amount  recoverable  for  a  first  offense. 
Remission  of  a  part  of  a  claim  simply  to  obtain  jurisdiction,  and  without  consent 
of  a  debtor,  is  generally  held  not  to  be  allowable,  though  there  are  authorities 
both  ways  upon  this  question.  The  court  sees  no  necessity  for  determining  this 
question,  however,  as  our  conclusion  depends  upon  other  grounds.  These  pro- 
ceedings were  within  the  jurisdiction  of  the  court,  so  far  as  appears  on  the  face 
of  the  record.  The  actions  sought  to  be  prohibited  were  yet  undetermined,  or  they 
were  already  determined.  If  they  were  determined  before  notice  of  the  writ  of 
prohibition,  there  is,  of  course,  an  end  of  this  case.  If  they  were  not  determined, 
then  upon  the  trial  the  petitioner  would  have  a  complete  remedy  at  law  by 
showing  by  evidence  that  they  were  subsequent  offenses,  if  in  fact  they  were. 
The  answer  of  the  respondent  shows  that  judgment  had  been  regularly  rendered, 
but  not  formally  entered,  in  this  cause,  before  notice  of  the  writ  of  prohibition, 
and  this  application  might  have  been  dismissed  on  that  ground.  As,  however, 
the  question  seemed  one  of  public  importance,  the  court  preferred  to  give  these 
views.  The  application  for  the  writ  of  prohibition  will  be  denied,  and  it  is  so 
ordered. 


DRUGLESS  HEALING  IS  PRACTICE   OF  MEDICINE 

Territory  v.  Neiomman,  13  New  Mexico  98;  19  Pac.  106 
1905 

The  defendant  was  indicted  for  practicing,  or  offering  to  practice,  medicine 
without  having  obtained  a  license,  and  the  jury  were  instructed  as  follows : 
"  'The  practice  of  medicine'  .  .  .  means  ( 1 )  to  open  an  office  for  the  practice 
of  medicine;  or  (2)  to  announce  to  the  public  or  to  any  individual,  in  any  way, 
a  desire  or  willingness  or  readiness  to  treat  the  sick  or  afflicted,  or  investigate 
or  diagnose,  or  offer  to  investigate  or  diagnose,  any  physical  or  medical  ailments 
or  disease  of  any  person;  or  (3)  to  suggest,  recommend,  prescribe,  or  direct  for 
the  use  of  any  person  any  drug,  medicine,  appliance,  or  other  agency,  whether 
material  or  not  material,  for  the  use,  relief,  or  palliation  of  any  ailment  or 
disease  of  the  mind  or  body,  or  the  cure  or  relief  of  any  wound,  fracture,  or 
bodily  injury,  or  deformity,  after  having  received  or  with  the  intent  to  receive 
therefor,  either  directly  or  indirectly,  any  bonus,  gift,  or  compensation."  This 
instruction,  which  was  objected  to,  seems  to  the  court  to  have  been  favorable  to 
the  defendant,  rather  than  otherwise,  since  it  greatly  restricted  the  number  of 
acts  which  the  jury  might  otherwise  have  found  the  defendant  committed  in  vio- 
lation of  the  statute.  It  says  that  the  subdivision  complained  of  was  a  proper 
and  appropriate  one,  under  the  circumstances. 

Then  the  defendant  objected  that  by  the  statute  a  new,  unusual,  and  false 
meaning  was  given  to  the  phrase  "practicing  medicine" ;  that  he  never  engaged  or 
offered  to  engage  in  the  practice  of  medicine;  that,  on  the  contrary,  the  evidence 
showed  him  to  be  a  practitioner  of  a  system  of  drugless  healing;  and  that  the 


'  397 

legislature  could  not  so  extend  tlie  meaning  of  said  words  "practice  of  medicine" 
as  to  cover  and  include  methods  of  healing  diametrically  opposed  to  the  practice 
of  medicine  as  theretofore  commonly  understood  and  defined.  'I  he  court  answers 
it  would  perhaps  have  been  possible  for  the  legislature  to  choose  a  better  phrase 
under  which  to  group  healing  methods  of  all  kinds,  although  the  use  of  the 
expression  "practicing  medicine"  to  mean  the  art  of  healing  is  by  ao  means  new, 
but  rather  a  return  to  the  original  meaning  of  the  word  "medical."  But  what- 
ever may  be  thought  of  the  terms  in  which  the  prohibition  of  the  statute  is 
expressed,  there  can  be  no  doubt  of  their  meaning:  and  the  defendant  was  clearly 
forbidden  to  do  that  which  the  evidence  showed,  and  he  did  uot  deny,  that  he  did. 
without  a  license  from  the  board  of  health  as  provided  for  by  the  statute.  That 
it  was  not  claimed  he  had,  and,  if  the  statute  was  valid,  he  was  liable  to  the 
penalty  imposed  by  it. 

Again,  the  court  says  that  it  should  be  noted  that  the  statute  does  not  forbid 
the  use  of  methods  which  the  defendant  said  he  followed  for  the  cure  of  disease, 
or  any  other  methods  whatever,  but  only  requires  that  those  who  prescribe  or 
make  use  of  them  in  the  practice  of  medicine,  as  defined  by  the  statute,  shall  have 
qualified  themselves  for  such  practice,  and  received  a  license,  as  evidence  of  such 
qualification.  That  the  practice  of  the  art  of  healing,  in  whatever  form  and  in 
whatever  name  it  may  be  followed,  is  subject  to  regulation  by  legislative  enact- 
ment, under  the  police  power  of  the  state,  is  so  well  established  that  it  is  no  longer 
open  to  question.  If  there  were  no  such  rights  and  regulations,  it  would  be  neces- 
sary to  create  them,  for  the  protection  of  the  public  against  those  who  take 
advantage  of  the  widespread  ignorance  which  exists  in  relation  to  the  human 
organisms  to  impose  their  useless  and  often  harmful  nostrums  and  treatments  on 
those  who  are,  or  may  be  led  to  believe  they  are,  in  some  way  diseased.  It 
is  equally  certain  that  the  right  to  regulate  should  be  exercised  only  in  the 
public  interest,  and  not  to  create  monopolies,  or  otherwise  to  violate  those  funda- 
mental rights  which  are  secured  to  all  citizens. 

That  certain  acts  should  be  made  punishable  if  done  for  gain,  which  are  not 
prohibited  if  done  without  bad  motive,  seems  to  the  court  to  be  a  matter  properly 
within  the  discretion  of  the  legislature.  It  says  that  it  may  reasonably  have  been 
assumed  that  the  public  needed  no  protection  against  charitable  or  friendly  minis- 
trations, in  which  the  elements  of  good  faith  and  sincerity  of  belief  in  the  rem- 
edies prescribed  would  naturally  be  present,  and  in  which  greed  could  have  no 
place.  It  is  true  that  the  statute  commits  the  licensing  power  to  a  board  com- 
posed of  physicians  who  shall  be  graduates  of  some  medical  school  in  good 
standing,  but  the  inclusion  under  the  term  "practice  of  medicine"  of  what  it  is 
made  to  cover  by  the  statute  might  reasonably  be  construed  to  extend  the  meaning 
of  the  words  used  to  describe  the  members  of  the  board  in  like  manner.  Whether 
that  view  be  taken  or  not,  it  is  certain  that  the  board  provided  for  could  be  held 
by  the  courts  to  the  exercise  of  its  powers  in  a  reasonable  and  just  manner,  and 
would  have  no  right  to  refuse  to  issue  a  license  to  any  one  merely  because  of  his 
being  a  practitioner  of  some  school  of  healing  different  from  that  to  which  the 
members  of  the  board  belong.  The  defendant  claimed,  also,  that  the  educational 
qualifications  imposed  by  the  statute  were  not  adapted  to  or  required  in  the 
simple  method  of  healing  which  he  followed,  and  that  they  amounted  to  a  prohibi- 
tion of  his  constitutional  right  to  follow  his  calling.  But  the  court  says  that 
the  requirements  are  the  same  for  all  who  purpose  to  engage  in  the  practice  of 
medicine,  as  defined  by  the  statute  in  question,  and  therefore  not  open  to  the 
objection  that  any  particular  class  is  unduly  favored. 


WHAT  CONSTITUTES  PRACTICE   OF  MEDICINE 

Territory  v.  Lotspeich,  Ik  "New  Mexico  412;  94  Pac.  1025 

1908 

The  information  in  this  case  charged  that  the  defendant  attempted  to  prac- 
tice medicine  without  first  complying  with  the  provisions  of  the  act  of  1903,  and 
without  being  the  holder  of  a  certificate  entitling  him  to  practice  medicine  in  the 


398 

territory  of  New  Mexico.  The  information  described  the  unlawful  act  as  opening 
an  office  and  announcing  to  the  public  his  willingness  to  treat  consumptives  with 
"Pulmonine,"  and  receiving  compensation  from  the  Pulmonine  Company  for  so 
doing. 

Was  the  court  below  right  in  holding  that  this  information,  when  measured 
by  the  act  of  1903..  stated  no  offense?  That  act  subjects  to  punishment  any  person 
who  shall  practice  or  attempt  to  practice  medicine  without  first  complying  with 
its  provisions,  and  without  being  the  holder  of  a  certificate  from  the  Territorial 
Board  of  Health  entitling  him  to  practice.  There  was  no  contention  that  the 
information  failed  to  state  a  lack  of  this  certificate,  but  the  point  urged  and  sus- 
tained by  the  court  below  was  that  the  information  failed  to  allege  facts  showing 
that  Lotspeich  was  engaged  in  the  practice  of  medicine  within  the  meaning  of 
the  act. 

The  supreme  court  says  that  it  is  of  opinion  that  under  this  act,  to  constitute 
practice  of  medicine,  it  is  only  necessary  to  do  some  one  of  the  three  following 
things :  Either,  first,  to  open  an  office  for  the  practice  of  medicine ;  or,  second, 
to  announce  to  the  public  or  to  any  individual  in  any  way  a  desire  or  willingness 
or  readiness  to  treat  the  sick  or  afflicted,  or  investigate  or  diagnose,  or  offer  to 
investigate  or  diagnose,  any  physical  or  medical  ailment  or  disease  of  any  person; 
or,  third,  to  suggest,  recommend,  prescribe  or  direct  for  the  use  of  any  person 
any  drug,  medicine,  appliance  or  other  agency,  whether  material  or  not  material, 
for  the  cure,  relief  or  palliation  of  any  ailment  or  disease  of  the  mind  or  body, 
or  for  the  cure  or  relief  of  any  wound,  fracture  or  bodily  injury  or  deformity, 
after  having  received,  or  with  intent  of  receiving  therefor,  directly  or  indirectly, 
any  bonus,  gift  or  compensation. 

Under  the  first  two  subdivisions  the  essence  of  the  act  is  the  public  announce- 
ment of  a  general  readiness  and  willingness  to  treat  the  sick,  in  the  first  subdi- 
vision the  announcement  being  made  by  the  act  of  opening  an  office,  in  the  second 
by  advertisement  or  other  public  statement.  Under  neither  of  them  is  any  actual 
treatment  of  a  patient  necessary,  and  therefore  the  question  of  compensation  is 
immaterial  to  a  prosecution  thereunder. 

The  third  subdivision  deals  with  the  actual  treatment  of  or  prescription  for 
the  sick,  and  provides  that  such  attention,  even  to  only  one  person,  and  even 
without  previous  opening  of  an  office  or  advertisement  or  announcement,  shall 
constitute  the  practice  of  medicine,  provided  it  be  for  pay,  either  present  or 
prospective.  Under  this  last  clause  the  court  is  of  opinion  that  it  is  immaterial 
from  whom  compensation  was  received,  or  from  whom  it  was  intended  that  it 
should  be  received. 

By  the  terms  of  this  act  an  unlicensed  person  has  no  more  right  to  treat 
patients  on  a  general  undertaking  from  another,  as,  for  instance,  the  city  or  some 
philanthropic  person,  that  all  such  persons  will  be  paid  for  by  such  city  or  phil- 
anthropist, than  he  has  to  treat  such  persons  on  the  latter's  personal  payment 
or  undertaking  to  pay.  It  must,  however,  be  compensation  for  services  rendered 
the  patient,  not  for  services  rendered  the  third  party  paying  for  the  same  and  to 
which  the  treatment  of  the  person  is  purely  an  incident. 

On  the  argument  in  the  supreme  court,  and  apparently  in  the  court  below, 
the  sufficiency  of  the  information  under  the  third  subdivision  was  the  principal 
matter  of  controversy,  and  the  particular  criticism  was  that  the  information 
failed  to  allege  payment  or  expectation  of  payment  from  the  party  treated.  The 
supreme  court  concurs  with  the  court  below  in  holding  the  information  as  to  the 
third  subdivision  of  the  statute  insufficient,  not,  however,  for  the  reason  urged 
( for,  as  we  have  seen,  it  is  immaterial  from  whom  the  compensation  comes ) ,  but 
because  there  was  no  allegation  of  the  treatment  of  any  specified  person,  or  any 
person  at  all,  which  is  a  necessary  element  under  this  branch  of  the  statute. 
The  supreme  court  is  of  opinion,  however,  that  the  information  was  sufficient 
under  the  first  two  subdivisions  in  that  it  alleged  both  the  opening  of  an  office 
for  the  practice  of  medicine  and  an  announcement  to  the  public  of  a  desire,  will- 
ingness and  readiness  to  treat  the  sick. 

The  supreme  court  holds,  therefore,  that  the  trial  court  erred  in  holding  the 
information  generally  insufficient,  and  in  discharging  the  defendant  thereon. 


399 

PATENT  DOES  NOT  CONFER  EIGHT  TO  PRACTICE 
Thompson  v.  Staats,  15  Wend.  395 

183G 

Staats  sued  Thompson  in  the  justice's  court  of  the  city  of  Albany  for  practicing 
physic,  not  being  authorized  by  law.  It  was  proved  tnat  the  defendant  visited  a 
sick  man,  felt  his  pulse  and  gave  him  medicine,  which  he  took,  and  charged  and 
received  two  dollars  from  the  patient.  The  defendant  offered  in  evidence  letters 
patent,  granted  under  the  laws  of  the  United  States  to  Samuel  Thompson,  28th 
January,  1823,  authorizing  him  and  his  assigns,  for  the  term  of  14  years,  to 
make,  construct,  use,  and  vend  to  others  to  be  used,  a  certain  improvement  in 
the  preparing,  mixing,  compounding,  administering  and  using  certain  medicines, 
and  offered  to  prove  that  the  defendant  (John  Thompson)  was  an  assignee  of 
the  patentee,  and  that  the  medicine  administered  by  him  to  the  patient  was 
composed  of  the  materials,  and  compounded  in  the  manner  described  in  the 
schedule  annexed  to  the  letters  patent;  and  insisted  that  as  such  assignee  he  had 
the  right  under  the  patent,  to  administer  such  medicine,  without  being  licensed  to 
practice  physic,  as  required  by  the  laws  of  this  state.  The  evidence  was  objected 
to  by  the  plaintiff  and  rejected  by  the  court.  The  cause  was  tried  by  a  jury, 
who  found  a  verdict  for  the  plaintiff  for  ten  dollars,  for  which  sum  judgment 
was  rendered.     The  Supreme  Court  of  Judicature,  in  affirming  the  judgment  said: 

The  letters  patent  were  properly  rejected  as  irrelevant.  They  only  authorized 
the  patentee  and  his  assigns  to  make,  construct,  use  and  vend  his  newly  discovered 
compound  of  medicine;  not  "to  practice  physic  or  surgery,"  within  the  regula- 
tions of  the  statutes  of  this  state,  as  found  in  1  R.  S.,  454,  Sections  16  and  19. 
This  affords  a  sufficient  justification  for  the  decision,  if  there  were  no  other 
reasons  for  it.  When  the  terms  of  the  patent  are  broad  enough  to  enable  the 
patentee  to  put  himself  upon  a  footing  with  these  statutes,  it  will  be  time  enough 
to  consider  the  constitutional  question  raised  by  the  defendant,  how  far  the  law 
of  congress  under  which  the  patent  was  granted,  and  the  laws  of  this  state  regu- 
lating the  practice  of  physic  and  surgery,  come  in  collision.  The  defendant  pre- 
tended to  no  authority  to  practice  physic  under  the  laws  of  the  state,  and 
whether  he  had  thus  practiced  was  a  question  of  fact  which  the  jury  found 
against  him.    Judgment  affirmed. 


MANIPULATION  NOT  THE  PRACTICE  OF  MEDICINE 

Smith  v.  Lane,  24  Hun.  632 
1881 

This  action  was  brought  to  recover  the  price  defendant  agreed  to  pay  plaintiff 
for  the  treatment  of  himself  and  his  wife  for  certain  bodily  disabilities.  It  con- 
sisted entirely  of  manipulation  with  the  hand,  by  rubbing,  kneading  and  pressure. 
The  plaintiff  testified  that  he  was  employed  by  the  defendant  to  perform  these 
services  for  a  specific  compensation,  and  that  he  had  performed  them  until  the 
amount  due  to  him  was  the  sum  of  $149.  The  referee  dismissed  the  complaint 
because  it  appeared  that  the  plaintiff  was  not  a  graduate  of  any  medical  school, 
and  had  no  license  permitting  him  to  practice  either  medicine  or  surgery. 
Whether  the  act  of  1874  contains  anything  subjecting  him  to  such  disability,  is 
the  only  substantial  point  which  requires  to  be  considered  in  the  case.  The  act 
did  not  in  terms  prohibit  any  person  from  following  an  occupation  of  the  descrip- 
tion, and  without  some  prohibition  it  would  seem  to  be  as  lawful  as  any  other 
in  which  one  person  might  render  services  at  the  request  of  and  for  the  benefit  of 
another.  The  statute  in  terms  merely  declared  it  to  be  a  misdemeanor  for  any 
person  to  practice  medicine  or  surgery  who  is  not  authorized  to  do  so  by  a  license 
or  diploma  from  some  chartered  school,  state  board  of  medical  examiners  or 
medical  society,  or  who  shall  practice  under  cover  of  a  medical  diploma  illegally 
obtained. 

For  the  purpose  of  qualifying  a  person,  neither  licensed  nor  possessing  a 
diploma  of  the  nature  of  that  mentioned,  to  practice  medicine  or  surgery,  it  was 
provided  that  he  should  obtain  a  certificate  from  the  censors  of  a  medical  society 


400 

either  in  the  county,  district  or  State,  in  which  it  should  be  set  forth  that  he 
had  been  found  qualified  to  practice  all  of  the  branches  of  the  medical  art  men- 
tioned in  it.  The  second  section  of  this  act  is  not  required  to  be  considered,  for 
it  merely  provided  the  manner  in  which  persons  might  be  obliged  to  apply  for 
and  obtain  the  certificate.  It  was  in  no  manner  shown  upon  the  trial  that  either 
of  these  societies  would  issue  a  certificate  for  the  mere  purpose  of  including  in  it 
the  occupation  followed  by  the  plaintiff.  And  the  language  of  the  act  is  at 
variance  with  the  supposition  that  it  would  be  done,  for  the  certificate  is  not 
permitted  to  be  issued  unless  the  person  applying  for  it  shall  be  found  qualified 
to  practice  all  the  branches  of  the  medical  art  mentioned  in  it.  To  entitle  a 
person  to  a  certificate  under  this  provision,  it  would  be  necessary  that  he  should 
be  qualified  either  to  practice  medicine  or  surgery  in  all  its  branches.  If  that 
was  not  made  to  appear  he  could  receive  no  certificate  under  the  provisions  of 
this  act.  For  that  reason  it  appears  to  be  quite  manifest  that  the  object  of  the 
legislature  in  the  enactment  of  this  chapter  was  only  to  provide  for  regulating 
the  practice  of  medicine  and  surgery,  as  those  terms  are  usually  or  generally 
understood,  and  confining  them  to  such  significance,  it  is  evident  that  they  would 
not  include  the  occupation  of  the  plaintiff.  The  practice  of  medicine  is  a  pursuit 
very  generally  known  and  understood,  and  so  also  is  that  of  surgery.  The  former 
includes  the  application  and  use  of  medicines  and  drugs  for  the  purpose  of  curing, 
mitigating  or  alleviating  bodily  diseases,  while  the  functions  of  the  latter  are 
limited  to  manual  operations  usually  performed  by  surgical  instruments  or 
appliances.  It  was  entirely  proper  for  the  legislature,  by  means  of  this  chapter, 
to  prescribe  the  qualification  of  the  persons  who  might  be  intrusted  with  the 
performance  of  these  very  important  duties.  The  health  and  safety  of  society 
could  be  maintained  and  protected  in  no  other  manner.  To  allow  incompetent 
or  unqualified  persons  to  administer  or  apply  medical  agents,  or  to  perform 
surgical  operations,  would  be  highly  dangerous  to  the  health  as  well  as  the  lives 
of  the  persons  who  might  be  operated  upon,  and  there  is  reason  to  believe  that 
lasting  and  serious  injuries  as  well  as  the  loss  of  life  have  been  produced  by 
the  improper  use  of  medical  agents  and  surgical  instruments  or  appliances.  It 
was  the  purpose  and  object  of  the  legislature  by  this  act  to  prevent  a  continuance 
of  deleterious  practices  of  this  nature,  and  to  confine  the  uses  of  medicines  and 
the  operations  of  surgery  to  a  class  of  persons  who,  upon  examination,  should  be 
found  competent  and  qualified  to  follow  these  professional  pursuits.  No  such 
danger  could  possibly  arise  from  the  treatment  to  which  the  plaintiff's  occupation 
was  confined.  While  it  might  be  no  benefit,  it  could  hardly  be  possible  that  it 
could  result  in  harm  or  injury. 

For  that  reason  no  necessity  existed  for  interfering  with  this  pursuit  by  any 
action  on  the  part  of  the  legislature.  It  may  be  that  credulous  persons  would 
be  received  into  the  employment  of  the  plaintiff,  and  in  that  manner  subjected 
to  imposition.  But  it  was  no  part  of  the  purposes  of  this  act  to  prevent  persons 
from  being  made  the  subjects  of  mere  imposition.  If  the  plaintiff's  pretentions 
were  well  founded  then  diseases  would  no  longer  be  formidable,  and  even  death 
itself  would  be  deprived  of  its  terrors.  But  because  he  has  professed  more  than 
he  has  the  ability  to  accomplish  he  cannot,  on  that  account,  be  subjected  to  the 
disability  provided  for  in  this  act.  His  system  of  practice  was  rather  that  of 
nursing  than  of  either  medicine  or  surgery.  It  could,  in  no  event,  result  in 
any  other  injury  to  the  person  practiced  upon  than  that  of  possible  financial  loss. 
No  bodily  disability  or  diseases  could  either  result  from  or  be  aggravated  by  the 
applications  made  by  him.  And  what  he  did  in  no  sense  either  constituted  the 
practice  of  medicine  or  surgery.  He  neither  gave  nor  applied  drugs  or  medicine, 
nor  used  surgical  instruments.  He  was  outside  of  the  limits  of  both  professions, 
and  neither  one  of  the  schools  or  societies  mentioned  in  the  act  had  jurisdiction 
over  him  or  could  have  intervened  to  authorize,  restrict  or  prevent  him  in  the 
occupation  he  was  engaged  in  following.  While  his  services  may  have  afforded 
no  benefit  to  the  persons  receiving  them,  he  was  not  prohibited  from  performing 
them  by  anything  in  this  act,  and  no  other  law  was  violated  by  the  contract 
which  the  evidence  tended  to  show  had  been  entered  into. 


401 

It  was  not  necessary  that  proof  should  be  given  of  the  value  of  the  services. 
It  was  sufficient  for  the  purposes  of  the  action  that  a  contract  had  probably 
been  made,  by  which  a  specific  sum  was  agreed  to  be  paid  for  their  performance. 
As  the  case  stood,  the  referee  was  not  justified  in  dismissing  the  complaint.  The 
judgment  for  that  reason  should  be  reversed  and  a  new  trial  ordered,  with  costs 
to  abide  the  event. 


BURDEN  OF  PROOF  OF  QUALIFICATION  ON  DEFENDANT 
People  v.  Fuhla,  52  Him.  65;  h  A.  Y.  Hupp.  9 ',5;  ~  N-  7.  C.  R.  1 

1889 

The  evidence  showed  that  the  defendant  had  been  practicing  medicine  in  the 
city  of  New  York  since  1858;  that  he  was  naturalized  as  a  citizen  in  1868;  that 
he  had  received  medical  education  at  the  universities  of  Halle  and  Jena,  but 
that  he  had  never  received  a  full  diploma,  such  as  was  given  by  the  universities 
to  their  graduates  upon  the  completion  of  their  course  of  study.  The  evidence 
also  showed  that  during  the  war  he  passed  an  examination  for  a  commission  as 
medical  officer  in  the  New  York  volunteers,  and  received  a  commission  after  such 
examination  as  assistant  surgeon  in  one  of  the  regiments  of  the  New  York 
infantry. 

The  court  charged  the  jury  that,  if  the  evidence  satisfied  them  beyond  a  reason- 
able doubt  that  the  defendant  practiced  medicine  at  the  time  and  place  and  in 
the  manner  set  forth  in  the  first  count  of  the  indictment,  they  should  convict  the 
defendant,  unless  they  were  satisfied  that  at  that  time  he  had  a  license  authorizing 
him  to  practice  from  some  chartered  school,  state  board  of  medical  examiners,  or 
medical  society.  To  this  instruction  the  defendant  excepted.  There  seems  to  have 
been  no  error  in  this  charge.  The  law  made  the  defendant  amenable  to  punish- 
ment, did  he  practice  medicine  without  the  license  provided  for  by  said  section. 

The  court  further  charged  that,  if  the  practice  were  proved,  the  burden  of 
proof  was  thrown  upon  the  defendant  to  prove  that  he  had  a  license  or  diploma 
from  some  chartered  school,  state  board  of  medical  examiners,  or  medical  society, 
To  this  instruction  the  defendant  excepted.  This  seems  to  have  been  entirely 
correct.  The  burden  was  upon  the  defendant  to  prove,  after  the  people  had  proved 
the  fact  of  the  practicing  of  medicine,  that  he  was  authorized  to  practice  under 
the  provisions  of  the  statute. 

The  court  further  charged  that  none  of  the  papers  produced  by  the  defendant 
was  a  license  from  a  chartered  school,  state 'board  of  medical  examiners,  or 
medical  society.  The  evidence  certainly  did  not  disclose  any  such  license  or 
diploma  as  was  required  by  the  statute.  He  had  no  license  from  the  medical 
school  in  Prussia.  It  was  merely  a  certificate  that  he  had  passed  a  limited 
course  of  study.  The  commission  which  he  received  as  medical  officer  in  the 
New  York  volunteers  was  not  a  license  or  diploma  from  a  state  board  of  medical 
examiners,  allowing  the  defendant  to  practice  medicine  generally.  It  was  an 
examination  for  a  specific  purpose,  and  the  certificate  issued  was  simply  a  limited 
commission,  for  the  practice  of  medicine  within  a  limited  sphere. 

Neither  does  the  fact  that  before  the  enactment  of  the  provisions  of  the  law 
of  1874,  which  formed  the  basis  of  section  356  of  the  Code,  the  defendant  had  been 
practicing  medicine,  restrict  the  power  of  the  statute  to  compel  the  taking  out  of 
a  license  in  order  to  justify  his  practice.  This  was  part  of  the  police  regulations 
of  the  state.  It  was  thought  necessary  for  the  protection  of  the  people  that 
these  safeguards  should  be  thrown  around  them  in  reference  to  those  wdio  assumed 
to  practice  medicine  in  the  community.  The  state  had  a  right  to  determine  upon 
what  conditions  and  under  what  circumstances  its  citizens  should  be  entitled  to 
pursue  any  vocation.  It  was  in  no  way  interfering  with  any  vested  rights,  nor 
was  it  a  usurpation  of  authority  which  was  not  possessed.  There  seems  to  have 
been  no  error  committed  in  the  disposition  of  the  case,  and  the  conviction  must 
be  affirmed. 


402 

COUNTY  ASSOCIATION  ENTITLED  TO  FINES 

New  Yourk  County  Medical  Association  v.  the.  City  of  New  York,  32  Misc.  116; 

65  N.  Y.  8.  531 
1900 

Section  153  of  chapter  398  of  the  laws  of  New  York  of  1895  provides  that 
"when  any  prosecution  under  this  article  (for  practicing  medicine  without  lawful 
registration  as  a  physician)  is  made  on  the  complaint  of  any  incorporated  medical 
society  of  the  state,  or  any  county  medical  society  entitled  to  representation  in 
a  state  society,  the  fines,  when  collected,  shall  be  paid  to  the  society  making  the 
complaint,"  etc.  The  right  of  the  association  to  such  a  fine,  which  had  been 
collected  in  a  case  where  it  had  made  complaint,  was  the  issue  in  this  case.  The 
association  showed  that  it  had  been  sfnce  1890  a  duly  incorporated  society  of  the 
state  of  New  York,  entitled  to  representation  in  the  New  York  State  Medical 
Association,  which  was  incorporated  in  1884,  and  that  the  state  association  is 
the  accredited  society  in  the  national  body  of  physicians  known  as  The  American 
Medical  Association.  Such  being  the  case,  the  Supreme  Court  of  New  York,  New 
York  County,  holds  that  the  New  York  County  Medical  Association  meets  all  the 
requirements  of  the  act  of  1895  above  mentioned,  and  that  there  appears  to  be 
no  solid  legal  reason  why  it  should  be  excluded  from  the  benefit  of  its  provisions. 
"Association"  and  "society,"  the  court  holds,  are  convertible  terms.  To  this  it 
adds  that  the  statute  was  not  enacted  for  the  benefit  of  any  particular  corporation, 
but  for  "any  incorporated  medical  society"  entitled  to  representation  in  the  state 
society,  and  that  it  was  passed  to  protect  the  public  from  illegal  medical  prac- 
titioners, and  that  the  more  numerous  the  informers  and  rigid  the  prosecution 
the  better  for  the  public  and  the  medical  profession.  Nor  does  the  court  yield 
assent  to  the  argument  that  the  act  was  for  the  exclusive  benefit  of  three 
societies — the  regular,  homeopathic  and  eclectic — because  they  were  named  in 
certain  prior  acts,  and  possess  certain  rights  which  the  New  York  County  Medical 
Association  does  not  possess. 

VALIDATION   OF  IMPERFECT  REGISTRATION  RETROACTIVE 

Ottaway  v.  Lowden,  172  N.  Y.  129;  64  N.  E.  812 

1902 

The  Court  of  Appeals  reverses  the  decision  of  the  lower  court,  holding  the 
validation  of  imperfect  registration  not  retroactive.  Section  148  of  Chapter  661 
of  the  New  York  Laws  of  1893  provides,  among  other  things,  that:  "If  any  person, 
whose  registration  is  not  legal  because  of  some  error,  misunderstanding  or  unin- 
tentional omission,  shall  submit  satisfactory  proof  that  he  had  all  requirements 
prescribed  by  law  at  the  time  of  his  imperfect  registration  and  was  entitled  to 
be  legally  registered,  he  may,  on  unanimous  recommendation  of  a  state  board  of 
medical  examiners,  receive  from  the  regents  under  seal  a  certificate  of  the 
facts  which  may  be  registered  by  any  county  clerk  and  shall  make  valid  the  pre- 
vious imperfect  registration."  The  physician  by  whom  this  action  was  brought 
to  recover  for  medical  services  had  attempted  to  make  registration  as  required  by 
the  statute,  and  failed;  but,  assuming  that  he  was  correctly  registered,  he  pro- 
ceeded with  the  practice  of  medicine,  in  the  course  of  which  he  rendered  the 
services  sued  for.  A  short  time  thereafter  he  obtained  from  the  regents  a  certifi- 
cate which  made  valid  the  previous  imperfect  registration.  This  validation,  it 
was  held,  in  the  decision  now  reversed,  was  not  retroactive  and  did  not  authorize 
the  maintenance  of  this  action.  But  the  court  of  appeals  is  persuaded  that  the 
statute  operated  to  give  life  to  the  imperfect  certificate  from  the  date  of  its 
filing,  and  hence  authorized  the  physician  to  recover  for  all  services  rendered 
after  its  filing,  and  freed  him  from  the  various  misdemeanors  as  well.  It  says 
that  the  object  of  the  comprehensive  statutes  of  which  the  section  quoted  from 
forms  a  part  is  not  to  provide  a  trap  for  the  bona  fide  and  competent  physician 
who,  through  inadvertence  or  ill  advice,  fails  to  secure  a  perfect  registration,  but 
to  shut  cut  from  the  practice  of  medicine  those  whose  lack  of  knowledge  of  the 
human  body  and  ignorance  touching  methods  of  treatment  render  their  attempts 


403 

to  make  diagnosis  and  prescribe  treatment  a  menace  to  society.  Not  only  is  the 
standard  very  high  for  those  who  are  admitted  to  the  practice  of  the  profession 
by  the  authorities  of  this  state,  but  the  statutes  attempt  to  guard  against  any 
practicing  in  this  state  by  unskilful  and  improper  practitioners  corning  from 
sister  states,  showing  throughout  an  intent  on  the  part  of  the  legislature  to  pro- 
tect the  people  from  imposition  by  the  unlearned  and  unskilful  who  may  neverthe- 
less obtain  from  institutions  in  other  states  diplomas  purporting  to  assure  com- 
petency. To  that  end  the  certificate  of  the  board  of  regents,  based  on  the  unani- 
mous recommendation  of  a  board  of  medical  examiners,  is  exacted,  and  the  require- 
ments of  license  and  registration  are  insisted  on,  and  not  for  the  purpose  of 
bringing  within  the  penalties  of  the  statutes  a  physician  coming  from  another 
state,  possessed  of  all  the  qualifications  which  the  statutes  require.  As  experience 
teaches  that  mistakes  are  sometimes  made  in  attempting  to  comply  with  statutes 
— especially  by  those  whose  training  may  be  in  other  directions  than  the  law — 
the  legislature  has  undertaken  to  provide  a  method  by  which  imperfect  registra- 
tion may  be  corrected  by  the  same  authorities  who  acted  in  the  first  instance; 
and  as  the  object  of  the  section  authorizing  the  correction  is  only  to  make  such 
corrections  as  are  due  to  "some  error,  misunderstanding  or  unintentional  omis- 
sion," there  is  no  good  reason  why  the  legislature  should  not  provide  that  the 
correction  shall  operate  as  of  the  date  when  the  "imperfect  registration"  took 
effect,  thus  wiping  out  the  penalties  which  the  statute  imposed  to  better  secure 
its  enforcement.  And  the  phrase,  "shall  make  valid  the  previous  imperfect 
registration,"  as  it  seems  to  the  court,  when  considered  in  connection  with  the 
general  scheme  of  the  statute,  and  the  fact  that  all  of  the  applicant's  proofs  must 
go  to  show  that  he  was  entitled  to  be  registered  at  the  time  of  his  imperfect 
registration,  means  that  that  which  was  once  imperfect  and  invalid  shall  become 
perfect  and  valid  as  of  the  beginning. 


"PRACTICE    OF   MEDICINE"    WITHOUT   DRUGS 

People  v.  Allcutt,  111  App.  Div.  5^6;  102  N.  T.  Supp.  678 

1907 

The  Supreme  Court  of  New  York,  Appellate  Division,  First  Department, 
affirms  a  judgment  convicting  the  defendant  of  the  crime  of  practicing  medicine 
without  being  lawfully  authorized  and  registered.  The  court  says  that  the  evi- 
dence tended  to  establish  that  in  the  window  of  the  defendant's  residence  was 
exhibited  a  sign,  "Dr.  E.  Burton  Allcutt,  Mechano  Neural  Terapy;"  that  on  the 
bell  outside  the  door  was  the  name  "Dr.  Allcutt;"  that  in  the  office  building  in 
which  he  had  an  office  there  appeared  on  the  directory  in  the  hall,  "Dr.  E. 
Burton  Allcutt;"  that  he  had  and  distributed  a  card  reading,  "Dr.  E.  Burton  All- 
cutt, mechanoneural  therapy,"  giving  two  addresses  with  office  hours  at  each 
and  'phone  number,  and  that  his  receipt  for  services  rendered  was  signed  "Dr. 
E.  Burton  Allcutt." 

The  evidence  in  this  case  further  tended  to  establish  that  the  complaining 
witness  visited  the  defendant  at  the  office  address  given;  that  he  said  he  was 
Dr.  Allcutt,  and,  "I  usually  see  all  my  patients  up  town  in  the  afternoon  and 
I  am  down  in  this  office  in  the  morning."  The  witness  having  said  that  she  was 
troubled  with  severe  headaches,  was  nervous  and  had  frequent  spells  of  vomiting, 
the  defendant  told  her  that  he  wished  her  to  remove  her  corsets  in  order  to 
examine  her  thoroughly  to  find  out  what  her  trouble  was.  He  examined  her. 
chest,  heart  and  back  by  placing  his  ear  to  her  heart;  he  tapped  with  his  fingers. 
The  witness  asked,  "Doctor,  I  also  have  a  very  severe  pain  in  my  left  arm; 
do  you  think  it  is  rheumatism?"  He  said,  "You  are  entirely  too  young  to  have 
rheumatism;  it  is  from  your  stomach;  you  have  malaria  and  stomach  disease." 
She  said  to  him,  "Can  you  cure  me?"  The  defendant  said,  "Certainly  I  can.  You 
will  have  to  take  twelve  treatments,  which  will  cost  $25  in  advance."  He  said 
he  gave  no  medicine  at  all,  but  quieted  the  nervous  system.  He  was  asked  if  he 
called  at  patients'  residences,  and  he  replied,  "Certainly."  Witness  asked,  "Doc- 
tor, can  you  cure  all  kinds  of  diseases  without  drugs?"  He  said,  "Yes;  I  find  I 
can  cure  without   drugs,   I   can  cure  all  diseases  that  any  physicians   can  cure 


404 

without  drugs,  and  also  diseases  that  they  cannot  cure  with  drugs."  He  said 
that  he  had  practiced  medicine;  that  he  had  given  up  drugs;  that  he  could  cure 
anything  that  physicians  cured.  The  witness  then  paid  $5  for  the  examination 
and  received  a  receipt.  Subsequently  the  defendant  called  at  her  residence  in 
response  to  a  telephone  call.  The  witness  told  him  that  she  felt  ill  all  day,  that 
she  had  a  chill  and  had  been  vomiting,  had  a  pain  in  the  region  of  her  abdomen. 
The  defendant  took  hold  of  her  hand,  felt  of  her  pulse,  looked  at  her  tongue, 
examined  her  throat  and  said:  "It  is  all  from  your  stomach.  I  want  you  to 
drink  a  quantity  of  luke-warm  water  with  salt  in  it."  He  gave  it  to  her  in 
spoonfuls.  He  said,  "You  must  not  eat  pork  or  potatoes  or  any  kind  of  sweets," 
and  then  said,  "I  will  give  you  a  treatment."  Witness  testified  that  the  defendant 
started  to  treat  her  back  with  his  fingers;  he  said  he  was  treating  her  nerves; 
he  treated  her  spine  by  putting  the  fingers  on  her  spine,  the  ends  of  the  fingers, 
a  touching  sensation,  nothing  like  kneading;  he  did  this  for  about  an  hour.  He 
varied  that  treatment,  on  the  neck,  breast,  heart  and  stomach  in  the  same  way, 
just  by  his  fingers.  He  advised  her  in  case  she  had  pains  in  the  night,  if  the 
pain  in  her  abdomen  were  severe,  to  place  an  ice  bag  on  it  and  one  on  her  feet, 
and  if  her  bowels  troubled  her  to  place  a  hot-water  bag  on  her  back  and  go  to 
bed,  not  to  lie  on  the  couch,  and  if  she  got  any  worse  to  send  for  him.  Her 
husband  asked  him,  "Doctor,  what  are  you  doing?"  He  replied,  "I  am  treating 
her  nerves.  Don't  you  see  how  quiet  she  is  now?"  Five  dollars  was  paid  for 
that  visit.  The  witness  testified  that  as  a  matter  of  fact  there  was  nothing  the 
matter  with  her,  and  that  she  was  acting  during  these  interviews  as  a  detective. 

The  defendant  testified  in  his  own  behalf  that  he  practiced  the  art  of  mechano 
neural  therapy  and  that  he  was  a  graduate  of  a  college  of  mechano  neural 
therapy.  It  was  conceded  that  such  college  was  not  recognized  by  the  Regents 
of  the  State  of  New  York,  and  that  a  diploma  of  that  institution  would  not  give 
the  right  to  practice  nor  to  an  admittance  to  an  examination  to  determine  the 
fitness  of  such  a  person  to  practice  medicine,  and  that  the  defendant  was  not 
registered  as  a  physician  in  the  County  of  New  York.  The  defendant  also  testified 
that  prior  to  his  attendance  at  said  college  he  had  been  practicing  massage,  and 
was  a  graduate  of  the  Mills  Training  School,  attached  to  Bellevue  Hospital,  and 
had  engaged  in  his  profession  as  a  nurse;  that  the  statement  of  the  complaining 
witness  was  substantially  correct;  that  he  had  not  studied  medicine,  except  from 
the  standpoint  of  a  nurse;  that  mechano  neural  therapy  means  mechanical  nerve 
treatment,  a  gentle  pressure  on  ail  parts  of  the  body;  that  the  whole  theory  of 
this  science  is  that  disease  comes  from  lack  of  blood  circulation,  and  that  the 
treatment  proceeds  on  the  theory  of  assisting  the  circulation  back  into  normal 
condition. 

The  contention  of  the  defendant  was  that,  conceding  all  the  facts  proved,  he 
was  not  guilty  of  the  crime  charged,  inasmuch  as  he  was  not  practicing  medicine 
within  the  meaning  of  the  statute,  in  that  he  neither  gave  nor  applied  drugs  or 
medicine  nor  used  surgical  instruments. 

Section  153  of  the  New  York  Public  Health  Law  (Chap.  661  of  the  Laws  of 
1893)  provides  as  follows:  "Any  person  who,  not  being  then  lawfully  authorized 
to  practice  medicine  within  this  state  and  so  registered  according  to  law,  shall 
practice  medicine  within  this  state  without  lawful  registration  .  .  .  shall 
be  guilty  of  a  misdemeanor." 

Continuing,  the  court  says  that  to  confine  the  definition  of  the  words  "practice 
medicine"  to  the  mere  administration  of  drugs  or  the  use  of  surgical  instruments 
would  be  to  eliminate  the  very  cornerstone  of  successful  medical  practice,  namely, 
the  diagnosis.  It  wou-ld  rule  out  of  the  profession  those  great  physicians  whose 
work  is  confined  to  consultation,  the  diagnosticians,  who  leave  to  others  the 
details  of  practice.  Section  146  of  the  Public  Health  Law  provides  that  persons 
desiring  to  practice  must  pass  a  Regent's  examination  made  up  of  "suitable 
questions  for  thorough  examination  in  anatomy,  physiology  and  hygiene,  chem- 
istry, surgery,  obstetrics,  pathology  and  diagnosis  and  therapeutics,  including 
practice  and  materia  medica."  Diagnosis  would,  therefore,  seem  to  be  an  integral 
part  of  both  the  study  and  practice  of  medicine,  so  recognized  by  the  laws  as 
well  as  common  sense.  The  correct  determination  of  what  the  trouble  is  must 
be  the  first  step  for  the  cure  thereof.  It  is  a  well-known  fact  that  the  disease 
popularly  known  as  consumption  may,  if  discovered  in  time,  be  arrested,  if  not 


405 

entirely  eradicated  from  the  system,  by  open-air  treatment  in  the  proper  climate, 
and  that  in  such  cases  use  of  drugs  has  been  practically  given  up.  Would  the 
physician,  in  such  a  case,  who  by  his  skill  discovered  the  incipient  disease, 
advised  the  open-air  treatment  and  refrained  from  administering  drugs,  not  be 
practicing  medicine?  It  may  be  difficult  by  a  precise  definition  to  draw  the  line 
between  where  nursing  ends  and  the  practice  of  medicine  begins,  and  the  court 
should  not  attempt,  in  construing  this  statute,  to  lay  down  in  any  case  a  hard 
and  fast  rule  on  the  subject,  as  the  courts  have  never  undertaken  to  mark  the 
limits  of  the  police  power  of  the  state  or  to  have  precisely  defined  what  consti- 
tutes fraud.  What  the  courts  have  done  is  to  say  that  given  legislation  was  or 
was  not  within  the  limits  of  the  police  power,  or  that  certain  actions  were  or 
were  not  fraudulent. 

The  court  is  of  the  opinion,  from  the  general  current  of  the  authorities 
throughout  the  country  and  from  examination  of  the  history  and  growth  of  our 
own  public  health  statutes,  that  it  should  not  apply  the  rule  as  claimed  to  have 
been  laid  down  in  Smith  vs.  Lane.  When  we  find,  as  in  this  case,  a  defendant 
holding  himself  out  by  sign  and  card  as  a  doctor,  with  office  hours,  who  talks  of 
his  patients  and  gives  treatments,  who  makes  a  diagnosis  and  prescribes  diet  and 
conduct  and  remedies,  simple  though  they  be,  and  who  asserts  the  power  to 
cure  all  diseases  that  any  physician  can  cure  without  drugs  and  also  diseases 
that  they  cannot  cure  with  drugs,  and  who  takes  payment  for  a  consultation 
wherein  there  was  an  examination  and  determination  of  the  trouble,  that  is,  a 
diagnosis,  as  well  as  payment  for  subsequent  treatment,  even  if  no  drugs  are 
administered,  we  must  hold  that  he  comes  within  the  purview  of  the  statute 
prohibiting  the  practice  of  medicine  without  being  lawfully  authorized  and 
registered. 

The  judgment  of  conviction  should,  therefore,  be  affirmed. 


RECEIVED    THE    MEDICAL    DEGREE 

People  v.  Somme,  120  App.  Div.  20;  10k  N.  Y.  Hupp.  9>,6 

1907 

The  Supreme  Court  of  New  York,  Appellate  Division,  First  Department,  says 
that  the  defendant  was  convicted  by  the  Court  of  Special  Sessions  for  a  violation 
of  Section  153  of  the  public  health  laws  in  that  on  a  named  date,  in  the  County 
of  New  York,  he  did  unlawfully,  without  having  legally  received  a  medical 
degree,  and  without  having  received  a  license  according  to  law  which  constituted 
at  the  time  an  authority  to  practice  medicine  under  the  laws  of  the  state  then 
in  force,  then  and  there  assume  and  advertise  the  title  of  "Dr."  and  "M.D."  in 
such  a  manner  as  to  convey  the  impression  to  one  Katie  Farenga  that  he,  the 
said  Joseph  Somme,  was  then  and  there  a  legal  practitioner  of  medicine.  Said 
section  provides  that:  "Any  person  who  shall  append  the  letters  M.D.  to  his  or 
her  name  (or  shall  assume  or  advertise  the  title  of  doctor,  or  any  title  which 
shall  show  or  tend  to  show  that  the  person  assuming  or  advertising  the  same 
is  a  practitioner  of  any  of  the  branches  of  medicine),  in  such  a  manner  as  to 
convey  the  impression  that  he  or  she  is  a  legal  practitioner  of  medicine,  or  any 
of  its  branches,  without  having  legally  received  the  medical  degree,  or  without 
having  received  a  license  which  constituted  at  the  time  an  authority  to  practice 
medicine  under  the  laws  of  this  state  then  in  force,  shall  be  guilty  of  a 
misdemeanor." 

The  evidence  showed,  among  other  things,  that  there  was  a  sign  in  the 
defendant's  window,  "Dr.  Somme,  Osteopath,"  and  on  the  bell,  "Dr.  J.  Somme." 
The  complainant  testified  that  she  said  to  the  defendant:  "Are  you  Dr.  Somme?" 
He  said,  "Yes."  She  then  described  her  condition  to  him.  The  defendant  asked 
some  questions,  and,  in  reply  to  her  query,  "Can  you  do  anything  for  me  ?"  said : 
"  'Yes,  I  can  perform  an  operation.'  I  said :  'Can  not  you  give  me  some 
medicine?'  He  said:  'No;  medicine  will  do  no  good.'  I  told  him  I  was  afraid 
of  an  operation.  He  said :  'The  only  thing  for  you  is  a  good  scientific  opera- 
tion.'"  He  also  handed  her  his  card,  which  read:  "Dr.  Somme,"  etc.  On 
another  occasion  she  saw  him  again,  and  after  a  conversation  left  $2  on  deposit. 


406 

In  the  newspapers  he  advertised:  "Dr.  J.  Somme,  Osteopath.  Specialist  for  all 
chronic  difficult  diseases.  Safe,  scientific  treatment."  It  was  conceded  that  the 
defendant  possessed  the  diploma  of  a  medical  school  in  Indianapolis  called  the 
"College  of  Medicine  and  Midwifery."  He  did  not  produce  or  offer  to  produce 
any  other  authority  for  the  assumption  and  use  of  the  title  of  "Dr."  or  "M.D." 

The  essence  of  the  section  of  the  statute  under  which  the  defendant  was 
prosecuted  was  that  he  should  not  assume  or  advertise  that  title  in  such  a 
manner  as  to  convey  the  impression  that  he  was  a  legal  practitioner  of  medicine. 
The  evidence  was  sufficient  as  to  the  manner  of  the  use.  Putting  up  a  sign, 
advertising  as  a  specialist  for  all  chronic,  difficult  diseases,  discussing  symptoms 
with  a  proposed  patient,  advising  an  operation,  and  receiving  money  in  part 
payment  in  advance  therefor  were  facts  establishing  an  invitation  to  the  public 
to  come  to  him  for  medical  treatment,  and  clearly  conveyed  the  impression  that 
he  was  a  legal  practitioner  of  medicine  or  some  of  its  branches. 

But  the  real  question  involved  was:  What  do  the  words  "without  legally 
having  received  the  medical  degree"  mean? 

No  person  is  now  a  legal  practitioner  in  the  State  of  New  York  unless  he 
comes  within  one  of  these  three  classes:  First,  those  who  registered  diplomas 
prior  to  1890;  second,  those  who  registered  licenses  since  1890;  and,  third,  a 
small  class  who  received  certificates  from  the  censors  of  medical  societies  under 
Chapter  436  of  the  Laws  of  1874 — because  Section  140  of  the  public  health  laws 
provides  that  no  person  shall  practice  medicine  after  Sept.  1,  1891,  unless  previ- 
ously registered  and  legally  authorized,  or  unless  licensed  by  the  regents  and 
registered  as  required  by  this  article  (Article  8  of  the  public  health  law). 

The  defendant  Avas  not  within  any  of  the  three  classes.  His  claim  was  that 
he  had  a  degree  of  M.D.  from  an  Indiana  college.  If  it  be  conceded  that  the 
college  was  a  legitimate  institution  with  power  to  grant  the  degree,  yet  that 
degree  was  worthless  as  a  license  to  practice  medicine  in  New  York,  and  was 
worthless  as  a  preliminary  requirement  to  take  the  regent's  examination  for  a 
license.  By  the  legislation  referred  to  a  medical  school  diploma  conferring  the 
title  "M.D."  does  not  serve  as  a  license  to  practice  medicine  in  New  York.  Its 
holder  is  required  to  pass  the  regents'  examinations.  He  cannot  be  admitted  to 
the  examination  unless  he  has  received  the  degree  from  some  institution  approved 
by  the  regents.  If  he  succeeds  in  the  regents'  examination,  a  regents'  license  is 
issued,  which  is  the  sole  authority  to  practice  medicine  and  which  must  be 
registered  in  the  county  clerk's  office  before  beginning  practice.  Therefore,  when 
we  consider  that  the  statute  prohibits  the  assumption  or  advertisement  of  the 
title  of  "Dr."  in  such  a  manner  as  to  convey  the  impression  that  he  or  she  is  a 
legal  practitioner  of  medicine  or  any  of  its  branches,  without  having  legally 
received  the  medical  degree,  the  words  "without  having  legally  received  a 
medical  degree"  are  meaningless  unless  interpreted  as  meaning  "  having  received 
a  medical  degree  such  as  legally  entitled  the  holder  to  practice." 

It  is  now  the  settled  policy  of  the  state  to  hedge  admission  into  the  learned 
professions  with  strict  requirements  in  order  to  secure,  so  far  as  possible,  compe- 
tent services  to  patients  and  clients  from  physicians  and  lawyers,  and  the  statutes 
in  regard  to  admission  to  the  bar,  as  well  as  to  the  practice  of  medicine,  have  to 
some  extent,  gone  hand  in  hand.  Formerly  the  degree  from  the  law  school  or  the 
medical  school  in  and  of  itself  entitled  the  holder  to  admission  to  practice.  Now 
in  both  professions  it  is  merely  a  preliminary  to  examination.  Neither  the  lawyer 
nor  the  physician  coming  from  another  state,  or  holding  a  degree  of  a  law  or 
medical  school  in  another  state,  can  hold  himself  out  or  advertise  in  such  a 
manner  as  to  convey  the  impression  that  he  is  a  legal  practitioner  of  either 
profession,  unless  duly  and  legally  licensed  and  admitted  to  practice  in  New 
York  State  under  its  laws,  without  being  guilty  of  a  misdemeanor. 

Therefore,  the  court  thinks  that  the  defendant  came  within  the  spirit  and 
the  letter  of  the  statute,  and  that  the  judgment  of  conviction  was  proper. 

In  a  dissenting  opinion  Justice  Ingraham  says,  among  other  things,  that  the 
construction  given  to  Section  153  by  the  prevailing  opinion  treats  the  words 
"without  having  legally  received  the  medical  degree"  as  synonymous  with  the 
second  clause,  so  that  under  this  construction  any  foreign  physician  coming  to 
New  York  State  and  appending  to  his  name  the  letters  "M.D.,"  unless  he  had 
received  a  license  which  authorized  him  to  practice  medicine  in  New  York  State, 


407 

would  be  guilty  of  a  misdemeanor,  a  construction  which  seems  to  Justice 
Ingraham  to  be  at  variance  with  the  express  intention  of  the  h^hlature.  As 
he  reads  the  section,  the  prohibition  against  a  person  assuming  or  advertising 
the  title  of  "Dr."  in  such  a  manner  as  to  convey  the  impression  that  he  or  she 
is  a  legal  practitioner  of  medicine  only  applies  where  the  person  has  not  legally 
received  the  medical  degree,  or  has  not  received  a  license  which  constituted  at 
the  time  an  authority  to  practice  medicine  under  the  laws  of  the  state.  A  person 
who  has  legally  received  a  medical  degree  is  not  prohibited  from  calling  himself 
a  physician  because  he  has  not  also  been  authorized  to  practice  medicine. 


CORPORATIONS     OTHER    THAN    HOSPITALS,    ETC.,    ARE    PROHIBITED 
FROM    ADVERTISING    TO    PRACTICE    MEDICINE. 

People   v.   John    H.    Woodbury    Dermatological   Institute,    102    X.    Y.    h">'i> 

85  N.  E.  697 
1908 

The  Court  of  Appeals  affirms  the  judgment  of  conviction  of  the  defendant  of 
the  crime  of  unlawfully  advertising  to  practice  medicine  in  violation  of  the 
provision  of  the  statute  of  that  state  that  "any  person  not  a  registered  physician 
who  shall  advertise  to  practice  medicine,  shall  be  guilty  of  a  misdemeanor." 

The  court  says  that  it  was  argued  that  the  context  in  the  general  act  of  1907 
regulating  the  practice  of  medicine,  which  contains  the  prohibition  against 
advertising  to  practice  medicine  by  any  person  not  a  registered  physician, 
indicates  conclusively  that  "any  person"  therein  mentioned  could  not  possibly 
have  been  intended  to  mean  '"any  corporation." 

The  great  difficulty  in  the  adoption  of  a  construction  making  this  statute 
apply  to  corporations  grows  out  of  the  existence  of  hospitals,  dispensaries,  and 
similar  corporate  institutions,  which  are  unquestionably  authorized  by  law  to 
practice  medicine,  although,  of  course,  only  through  the  agency  of  natural  persons 
who  are  duly  registered  as  physicians.  But  the  objects  for  which  the  defendant 
was  incorporated  were  stated  in  the  certificate  of  incorporation  to  be:  "The 
carrying  on  of  business  of  manufacturing  chemical  preparations  and  printing, 
publishing  and  selling  books  and  pamphlets,  relating  to  the  same  and  advertising 
same."  There  could  be  no  suggestion  or  pretense  that  this  was  a  hospital 
corporation  or  dispensary. 

In  reference  to  hospitals  and  dispensaries,  it  could  hardly  have  been  the 
intention  of  the  legislature  in  the  act  of  1907  to  prohibit  such  corporations  from 
advertising  to  do  what  they  might  do  lawfully — that  is  to  say,  from  advertising 
to  practice  medicine;  yet  it  was  argued  that,  if  the  court  held  that  the  act  of 
1907  made  it  a  misdemeanor  for  any  corporation  (making  the  term  "person" 
embrace  a  corporation)  to  advertise  to  practice  medicine,  it  must  also  hold  that 
incorporated  hospitals  and  dispensaries  fell  within  the  prohibition.  If  this  were 
the  necessary  result  of  the  construction  adopted,  it  would  furnish  a  strong  reason 
for  rejecting  that  construction. 

It  seems  to  the  court,  however,  that  it  can  affirm  this  judgment  without  in 
any  wise  denying  the  lawful  right  of  hospitals,  dispensaries,  and  similar  cor- 
porate institutions  to  advertise  their  readiness  to  exercise  their  lawful  functions; 
and  this  simply  for  the  reason  that  the  general  medical  law  of  1907  is  obviously 
not  intended  to  apply  to  the  case  of  such  corporations  at  all.  In  other  words, 
the  prohibitions  therein  contained  against  the  practice  of  medicine  without 
lawful  registration  in  New  York  state,  or  in  violation  of  any  of  the  provisions 
of  the  statute,  or  against  advertising  by  any  person  not  a  registered  physician, 
were  not  intended  to  apply  and  plainly  could  not  reasonably  be  held  to  apply  to 
corporate  bodies  which  by  the  express  provisions  of  other  statutes  are  authorized 
to  carry  on  the  practice  of  medicine  on  compliance  with  their  provisions  and 
without  registration. 

The  incorporation  of  hospitals  is  provided  for  in  Section  80  of  the  member- 
ship corporations  law  of  New  York.  An  institution  of  this  character,  possessing 
legislative  authority  to  practice  medicine  by  means  of  its  staff  of  registered 
physicians  and  surgeons,  comes  under  the  direct  sanction  of  the  law  in  so  doing, 


408 

and  by  the  plainest  implication,  under  well-settled  rules  of  statutory  construction 
relating  to  enactments  dealing  with  the  same  general  subject  matter,  is  excepted 
from  the  operation  of  the  act  of  1907  under  which  the  defendant  was  convicted. 

It  was  suggested  in  behalf  of  the  defendant  that  to  attribute  to  the  legislature 
a  design  to  prohibit  a  corporation  which  was  not  registered  as  a  physician  from 
advertising  to  practice  medicine  was  to  charge  the  lawmakers  with  doing  an 
absurd  act,  inasmuch  as  it  is  impossible  under  the  law  for  a  corporation  to 
register  as  a  physician.  There  is  nothing  in  this  point.  It  might  just  as  well  be 
urged  that  there  is  no  need  of  a  law  prohibiting  a  minor  from  voting,  since  every- 
body knows  that  a  minor  has  no  legal  right  to  vote.  This  fact  does  not  prevent 
illegal  attempts  on  the  part  of  minors  to  exercise  the  right  of  suffrage,  and  the 
facts  in  the  present  case  show  that  a  corporation  may  undertake  to  practice 
medicine  without  authority  of  law. 

We  do  not  need  the  statutory  definition  to  determine  that  this  is  advertising, 
"to  practice  medicine"  by  a  non-registered  physician.  But  the  defendants 
demanded  acquittal  on  the  contention  that  the  strict  construction  required  of  all 
penal  statutes  would  not  here  permit  the  extension  of  "person"  to  include  a 
corporation,  and  counsel  supported  this  contention  with  arguments  and  citations 
which,  but  for  the  New  York  Statutory  Construction  Act,  seemingly  ought  to  be 
convincing.  This  act  provides  that  "the  term  person  includes  a  corporation"  in 
"every  statute,  unless  its  general  object,  or  the  context  of  the  language  construed, 
or  other  provisions  of  the  law  indicate"  differently. 

The  general  object  of  the  medical  law,  instead  of  supporting,  seemingly 
negatives  the  contention  of  the  defendants.  There  is  no  escape  from  the  conclu- 
sion that  the  legislature  intended  to  confine  the  practice  of  medicine  to  registered 
physicians,  and  as  an  incident  to  such  practice,  similarly  confined  its  advertising. 
It  is  the  individual  alone,  in  his  own  name,  who  has  legally  qualified  and  secured 
registration,  that  may  practice  or  advertise  to  practice  medicine.  Even  if  regis- 
tered he  may  not  hide  his  identity  by  assuming  some  other  name.  Possibly  the 
defendant  Buggeln  was  a  registered  physician — there  was  no  evidence  thereof — 
and  was  seeking  for  some  ulterior  purpose  to  conceal  his  identity  through  this 
species  of  advertising.  If  so,  he  offended  the  statute  other  than  as  charged,  but 
that  did  not  excuse  the  legal  entity,  which  existed  purely  by  statute,  for  offending 
a  plain  provision  of  law. 

Undoubtedly,  on  the  subject  of  advertising  the  legislature  had  in  view  the 
common  knowledge  that  any  medical  advertising  beyond  the  simplest  disclosure 
of  name,  location,  office  hours  and  school  of  medicine,  contravenes,  and  long  has 
contravened,  time-honored  ethics  of  the  medical  profession.  It  is  quite  probable 
from  this  knowledge  it  was  assumed  that  all  display  advertising  on  the  subject 
emanated  from  questionable  or  empirical  sources.  And  as  a  protection  against 
quacks  and  charlatans,  it  was  deemed  prudent  to  confine  all  advertisement  to 
those  who  could  and  did  present  qualifications  entitling  them  publicly  to  register 
as  physicians,  believing  that  any  invasion  of  professional  ethics  would  invite 
suitable  professional  penalties,  leaving  all  others  to  the  ordinary  penalties  of  the 
law.  This  statute,  therefore,  does  not  forbid  medical  advertising,  whether  modest 
or  bombastic,  if  done  by  a  registered  physician,  but  any  and  all  advertising 
emanating  from  other  sources  is  clearly  forbidden. 

The  statute  simply  forbids  all  advertising  unless  it  shall  be  in  the  name  of 
some  individual  who  shall  be  able  to  obtain  public  registration  as  a  physician. 
This  conclusively  appears  to  have  been-  the  object  the  legislature  had  in  "view, 
and  being  both  within  the  letter  and  the  spirit  of  the  act,  it  is  the  duty  of  the 
court  to  enforce  it. 

The  doctrine  of  vested  rights  was  not  well  taken.  The  powers  secured  by 
incorporation  were  those  of  "manufacturing  chemical  preparations  and  printing, 
publishing  and  selling  books  and  pamphlets  relating  to  the  same."  Not  a  single 
exhibit  before  the  court  pertained  to  these  chartered  rights;  each  was  wholly 
outside  and  within  a  sphere  of  doubtful  incorporate  purposes. 

The  constitutional  argument,  in  view  of  previous  legislation  and  adjudications, 
was  not  convincing.  If  the  legislature  has  constitutional  competence  to  restrict 
medical  practice  to  persons  of  ascertained  qualifications,  it  may  limit  all  indi- 
vidual matters,  such  as  advertising,  to  the  same  class. 


409 

The  effect  a  decision  adverse  to  the  defendants  might  have  on  incorporated 
hospitals,  sanitariums  and  medical  institutes  need  not  be  discussed.  If  they  are 
offending  the  present  law  these  defendants  could  not  claim  it  as  an  excuse.  As 
to  such  enterprises,  however,  it  may  be  added  that  they  come  under  other  pro- 
visions of  law,  and  the  court  is  not  informed  that  any  advertise  as  did  the  defend- 
ant corporation.  So  far  as  this  court  is  concerned,  these  other  corporations  carry 
on  businesses  which  furnish  accommodations  for  registered  physicians  to  prose- 
cute their  professions  with  better  results  than  at  the  home  of  the  patient,  and 
free  accommodations  for  the  unfortunate  poor,  who  thus  get  medical  care  and 
wholesome  attention  which  otherwise  might  be  denied.  As  to  them,  the  court 
knows  of  no  alluring  bait  openly  trailed  to  catch  the  dollars  of  those  able  and 
willing  to  pay  for  the  promised  conversion  of  plainness,  or  even  ugliness,  into 
beauty. 

Every  motion  should  be  denied,  and  each  defendant  should  be  convicted  on 
the  count  of  the  information  which  was  selected  by  the  prosecution  for  this  trial. 


EACH  ACT  BY  WHICH  ONE  PRACTITIONER  PERSONATES  ANOTHER  IS 

A  SEPARATE  CRIME 

People  v.  Dundenhausen,  130  App.  Div.  160  ;  115  X.  Y.  Supp.  37  If 

1909 

The  First  Appellate  Division  of  the  Supreme  Court  of  New  York  holds  that 
under  Section  153  of  the  public  health  law  of  New  York,  which  provides  that 
"any  person  who  shall  practice  medicine  under  a  false  or  assumed  name,  or  who 
shall  falsely  personate  another  practitioner  of  a  like  or  different  name,  shall  be 
guilty  of  a  felony,"  each  act  by  which  one  physician  personates  another  con- 
stitutes a  separate  crime,  and  the  commission  of  one  crime  has  no  relation  to 
or  bearing  on  the  other. 

As  a  consequence,  the  court  further  holds  that  when  the  indictment  in  this 
case  charged  a  practicing  of  medicine  with  a  particular  individual  on  a  particular 
date  under  a  false  name  it  was  error  to  admit  evidence  of  the  defendant's  rela- 
tions to  two  other  witnesses,  one  more  than  two  months  prior  to  the  crime 
charged  in  the  indictment,  and  one  eight  days  before. 

Here,  the  court  says,  the  defendant  was  indicted  for  violating  a  particular 
statute,  which  provided  that  personating  another  practicing  physician  was  a 
crime.  To  prove  the  crime  it  w7as  necessary  to  prove  that  the  defendant  per- 
sonated another  practitioner,  and  the  indictment  alleged  that  that  was  what  he 
did.  To  prove  that  he  did  practice  medicine  by  prescribing  for  a  person  named 
in  the  indictment  on  a  particular  day  named  was  not  a  part  of  a  scheme  the 
successful  accomplishment  of  which  the  defendant  was  indicted  for,  but  for 
violating  the  statute  by  doing  a  specific  act  charged  in  the  indictment,  and  the 
intent  of  the  defendant  was  not  an  essential  element  of  the  crime. 

Justice  Clarke,  however,  takes  the  ground,  in  a  dissenting  opinion,  concurred 
in  by  Justice  Scott,  that  the  continued  advertisement  in  the  papers,  inviting 
various  persons  to  the  same  office  for  medical  treatment  by  the  same  man,  under 
the  same  impersonation,  furnished  a  connection  between  the  various  occasions 
which  permitted  evidence  thereof  on  the  ground  of  a  common  intent  and  design; 
the  offense  charged  being  the   fraudulent   practicing  of  medicine. 


OSTEOPATHS    AND    DEATH    CERTIFICATES 

Bandel  v.  Department  of  Health  of  City  of  New  York,  193  N.  Y.  133; 

85  N.  E.  1061 

1909 

The  Court  of  Appeals  holds  that  the  statute  of  that  state  makes  doctors  of 

osteopathy  physicians,  while  the  Sanitary  Code  requires  every  physician  in  the 

City  of  New  York  to  register  his  name  with  the  department  of  health. 

The  court  says  that  the  only  ground  on  which  the  health  department  refused 
to  register  this  party,  and  the  only  reason  advanced  for  opposing  the  motion  to 
compel  his  registration,  was,  as  specifically  stated  by  the  sanitary  superintendent 


410 

in  his  affidavit,  that  "a  doctor  of  osteopathy  by  reason  of  his  limited  training 
and  the  express  prohibition  against  his  use  of  drugs  and  medicines  and  the  use 
of  surgical  instruments,  is  not  a  physician  and  is  not  competent  to  diagnose  and 
treat  disease  as  a  physician,  nor  to  give  a  certificate  of  death  showing  the  cause 
thereof."  The  effect  of  the  denial  of  registration  as  a  physician  to  the  party 
by  the  health  department  was  that  the  body  of  a  person  who  died  while  he  was 
the  medical  attendant  could  not  be  buried  on  his  certificate  and  not  until  a 
coroner  had  taken  charge  of  the  case  and  had  held  an  investigation. 

The  court  also  expresses  the  view  that  when  a  person  employs  one  licensed 
to  practice,  his  family,  in  case  of  his  death,  should  not  be  subjected  to  the 
intense  annoyance  of  a  coroner's  investigation  where  the  law  does  not  require  it. 
But  it  adds  that,  while,  doubtless,  the  department  of  health  can  make  stringent 
regulations  as  to  the  persons  whose  certificates  of  death  it  will  accept  for  the 
purpose  of  a  burial  permit,  it  was  sufficient  to  say  that,  so  far  as  appeared, 
when  this  proceeding  was  commenced  it  had  not  made  any  regulation  which 
excluded  licensed  osteopaths  from  the  right  to  give  such  certificates. 

But  Chief  Justice  Cullen,  with  whom  Justice  Haight  concurs,  declares  that 
the  function  of  a  coroner's  inquest  is  to  investigate  the  cause  of  death  where 
there  are  reasonable  grounds  for  suspicion  that  it  has  been  occasioned  by  crime 
or  violence.  One  purpose  and  a  chief  purpose  of  accepting  a  physician's  certifi- 
cate as  evidence  of  the  cause  of  death  is  doubtless  to  exclude  suspicion  of  crime. 
Where  death  is  caused  by  criminal  means,  it  usually  occurs  through  external 
violence  or  from  poison.  The  osteopath  is  precluded  by  the  law  from  practicing 
surgery  or  administering  drugs,  presumably  for  the  reason  that  his  education 
does  not  qualify  him  to  practice  where  either  drugs  or  surgery  may  be  necessary. 
"I  am,  therefore,"  the  Chief  Justice  continues,  "not  prepared  to  say  that  the 
board  of  health  might  not  properly  require  that  a  certificate  of  death,  which 
would  exclude  from  the  cause  thereof  either  wounds  or  poison,  be  made  by  a  phy- 
sician who  is  competent  to  judge  of  such  matters.  It  is  sufficient  for  the  dis- 
position of  this  case  to  say  that  the  Sanitary  Code  now  in  force  draws  no  dis- 
tinction between  the  two  classes  of  physicians,  but  I  think  we  should  not  inti- 
mate that  the  Sanitary  Code  may  not  properly  be  amended  in  this  respect." 


SCHOOL  NOT  "REGULARLY  CONDUCTED"  IF  INCORPORATED  ONLY  IN 

ANOTHER   STATE 

People  v.  Reid,  135  App.  Div.  SD;  119  N.  Y.  Supp.  866 
1909 

The  defendant  applied  for  a  license  to  practice  osteopathy  in  the  city  of  New 
York.  The  "college"  from  which  the  applicant  for  the  license  claimed  to  be  a 
graduate,  was  located  in  the  city  of  New  York,  but  was  incorporated  under  the 
laws  of  the  state  of  West  Virginia,  as  a  stock  concern,  and  had  not  been  given 
permission  by  the  regents  of  the  state  of  New  York  to  assume  the  name  "college" 
or  to  confer  diplomas  or  degrees,  and  had  not  obtained  from  the,  secretary  of 
state  a  certificate  authorizing  it  to  do  business  within  the  state  of  New  York. 
The  evidence,  the  court  holds,  made  the  question  as  to  whether  this  was  a  school 
or  college  regularly  conducted,  within  the  purview  of  the  statute,  one  of  law, 
which  is  decided  in  the  negative. 

The  legislature  of  the  state  of  New  York  evidently  intended,  the  court  says, 
to  provide  for  licensing  osteopaths  who  are  graduates  in  good  standing  of  a 
school  or  college  of  osteopathy  duly  organized,  existing,  and  conducted  under 
the  laws  of  any  state  or  territory  within  the  United  States;  but  it  was  not 
intended  to  provide  that  graduates  of  schools  or  colleges  of  osteopathy  conducted 
within  the  United  States,  but  without  the  sanction  of  the  law  of  the  state  in 
which  they  are  conducted,  which  is  presumed  to  provide  for  proper  supervision, 
should  be  licensed  to  practice  osteopathy.  Surely  the  legislature  did  not  intend 
to  recognize  a  school  or  college  which  was  being  conducted  in  violation  of  the 
laws  of  this  state  (New  York),  nor  did  it  intend  to  recognize  a  school  or  college 
conducted  in  any  other  state  or  territory  in  violation  of  the  laws  of  that  state 
or  territory. 


411 

It  will  not  do  to  give  to  the  words  "regularly  conducted  school  or  college" 
the  limited  moaning  for  which  counsel  contended,  namely,  that  they  have  refer- 
ence only  to  the  regularity  of  the  sessions  and  continuity  of  the  course  of  study 
at  the  school  or  college.  The  word  "regularly,"  as  used  in  legal  proceedings 
and  statutes,  has  a  much  broader  meaning,  and  is  ordinarily  used  in  the  sense  of 
"duly,"  which  means  "lawfully,"  or  "legally;"  and  such,  the  court  thinks,  is  the 
meaning  that  the  legislature  intended  by  the  use  of  those  words  in  the  provision 
of  the  statute  involved  here. 


CORPORATIONS   CANNOT  PRACTICE  MEDICINE 

In  re  Cooperative  Law  Company,  198  W,  Y.    n'-i :  92  N.  E.  R.  15 

1910 

The  Court  of  Appeals  says  that  a  corporation  can  neither  practice  law  nor 
hire  lawyers  to  carry  on  the  business  of  practicing  law,  for  it,  that  it  cannot  do 
so  any  more  than  it  can  practice  medicine  or  dentistry  by  hiring  physicians  or 
dentists  to  act  for  it.  The  legislature,  in  authorizing  the  formation  of  cor- 
porations to  carry  on  "any  lawful  business,"  did  not  intend  to  include  the  work 
of  the  learned  professions.  Such  an  innovation,  with  the  evil  results  that  might 
follow,  would  require  the  use  of  specific  language  clearly  indicating  the  intention. 
Business  in  its  ordinary  sense  was  aimed  at,  not  the  business  or  calling  of  mem- 
bers of  the  great  professions,  which  for  time  out  of  mind  have  been  given 
exclusive  rights  and  subjected  to  peculiar  responsibilities. 


PRACTICE    OF    MEDICINE    BY    "SUGGESTIVE    THERAPEUTICS" 
People  v.  Mulford,  U0  App.  Div.  116;  125  y.  Y.  Supp.  680 

1910 

The  Fourth  Appellate  Division  of  the  Supreme  Court  affirms  a  conviction 
of  the  defendant  of  practicing  medicine  without  having  a  license  and  being 
registered  as  required  by  Chapter  344  of  the  Laws  of  New  York  of  1907,  which 
declares  that  "A  person  practices  medicine  within  the  meaning  of  this  act  .  .  . 
who  holds  himself  out  as  being  able  to  diagnose,  treat,  operate  or  prescribe  for 
any  human  disease,  pain,  injury,  deformity  or  physical  condition,  and  who  shall 
either  offer  or  undertake  by  any  means  or  method  to  diagnose,  treat,  operate  or 
prescribe  for  any  human  disease,  pain,  injury,  deformity  or  physical  condition." 

It  appeared  from  the  evidence,  without  contradiction,  that  the  defendant  had 
an  office,  where  he  received  patients,  and  treated  them  for  physical  ailments, 
and  received  compensation  therefor;  that  he  gave  no  medicine,  and  prescribd 
none;  that  he  performed  no  surgical  operations,  and  used  no  surgical  instru- 
ments ;  that  his  entire  treatment  consisted  of  the  laying  on  of  hands,  and  manipu- 
lation, breathing  and  rubbing  his  hands  together;  and  that  his  treatment  was 
beneficial  to  his  patients.  The  sign  in  front  of  his  office  indicated  that  his  treat- 
ment was  known  and  designated  as  "suggestive  therapeutics."  On  the  evidence 
he  was  practicing  medicine,  the  court  holds,  as  defined  by  the  above  statute,  and 
was  guilty  of  a  misdemeanor  thereunder. 

The  only  contention  of  the  defendant  was  that  the  statute  is  a  violation  of  the 
state  and  United  States  constitutions,  but  it  does  not  seem  to  the  court  to  require 
any  extended  discussion  to  show  that  the  legislature  had  the  right  to  enact  the 
provisions  of  this  law,  and  that  it  does  not  violate  the  provisions  of  the  consti- 
tutions. 

It  was  said  that  the  defendant  could  do  no  harm,  if  he  did  no  good,  and  that 
he  should  therefore  have  been  permitted  to  practice  his  calling  without  inter- 
ference, and  that  this  law,  which  brought  him  within  the  definition  of  one  who 
practiced  medicine,  and  was  therefore  prohibited  from  doing  so  without  a  license 
and  being  registered,  deprived  him  of  a  legal  right  to  carry  on  a  proper  business, 
and  was  a  violation  of  the  provisions  of  the  constitutions.  But  a  patient  may 
often  suffer  as  well  from  a  failure  to  prescribe  proper  remedies,  or  afford  surgical 
relief  promptly,  as  from  making  improper  prescriptions,  or  performing  unskilful 


412 

operations.  A  physician  who  holds  himself  out  to  treat  patients  for  physical  ills 
should  know  whether  to  do  anything,  and  what  to  do,  to  relieve  his  patient; 
otherwise,  he  should  not  be  permitted  to  practice,  and  impose  on  the  unfortunate 
sufferers  who,  like  the  poor,  are  always  with  us,  and  many  of  whom  need  the 
protection  of  the  state  against  quacks  in  and  out  of  the  profession  of  medicine. 
"I  [Justice  Williams  wrote  the  opinion]  have  no  sympathy  with  this  class  of 
practitioners,  who  seek  to  remain  outside  of  the  control  of  the  state,  for  the 
welfare  of  the  people." 

PROSECUTION    BY    A    MEDICAL    SOCIETY    NOT    MALICIOUS 

Schmidt  v.  Medical  Society  of  New  York  County,  1^2  App.  Div.  635;  121  N.  Y. 

Supp.  365 
1911 

Action  to  recover  damages  for  malicious  prosecution.  The  defendant  is  a 
domestic  corporation.  The  object  of  its  incorporation  is  to  assist  in  the  preser- 
vation of  the  public  health  and  secure  the  enforcement  of  laws  regulating  the 
practice  of  medicine  in  the  county  of  New  York.  The  plaintiff  was  arrested 
on  a  charge  of  practicing  medicine  without  being  legally  authorized  to  do  so. 
He  was  tried  and  acquitted.  After  his  acquittal,  he  brought  action  to  recover 
damages  for  his  prosecution,  alleging  that  the  same  was  malicious  and  without 
probable  cause.  The  answer  put  in  issue  the  material  allegations  of  the  com- 
plaint. Plaintiff  had  a  verdict  for  a  substantial  amount,  and,  from  the  judg- 
ment entered  thereon  and  an  order  denying  a  motion  for  a  new  trial,  defendant 
appeals. 

At  the  trial  the  evidence  established  that  the  plaintiff  was  not  authorized  to 
practice  medicine  in  the  state  of  New  York;  that  he  held  himself  out  as  Dr. 
Schmidt,  and  claimed  to  have  produced  a  remedy  which  would  cure  glanders; 
that  he  offered'  to  treat  and  did  treat  a  Dr.  Gannett  who  was  in  Bellevue  Hos- 
pital suffering  from  glanders. 

The  plaintiff  must  establish  by  a  fair  preponderance  of  evidence  that  his 
prosecution  was  malicious.  Malicious  prosecution  has  been  defined  as  "one  that 
is  begun  in  malice  without  probable  cause  to  believe  it  can  succeed,  and  which 
finally  ends  in  failure."  In  order  to  succeed,  therefore,  the  plaintiff  had  to 
prove  that  his  prosecution  was  malicious,  without  probable  cause,  and  that  he 
was  acquitted.  At  the  conclusion  of  plaintiff's  case,  the  defendant  moved  for  a 
dismissal  of  the  complaint  on  the  ground  that  the  plaintiff  had  failed  to  prove 
want  of  probable  cause.  The  motion  was  denied  and  an  exception  taken,  and  at 
the  conclusion  of  the  case  defendant  moved  for  the  direction  of  a  verdict  on  the 
same  ground.     This  motion  was  also  denied  and  an  exception  taken. 

The  court  is  of  the  opinion  that  the  trial  court  erred  in  each  case  and  that 
each  exception  necessitates  a  new  trial.  The  trial  court  apparently  was  of  the 
opinion  that  actual  guilt  and  probable  cause  must  concur  in  order  to  constitute 
a  defense.  This  is  not  the  law;  probable  cause  alone  being  a  complete  defense. 
It  is  not  necessary  that  the  accused,  in  order  to  justify  a  prosecution,  should 
appear  to  be  guilty  beyond  all  reasonable  doubt.  The  test  as  to  whether  reason- 
able or  not  must  be  applied  at  the  time  when  the  prosecution  was  commenced. 
As  to  whether  or  not  probable  cause  exists  is  a  question  of  law  for  the  court. 

Plaintiff  not  only  failed  to  prove  want  of  probable  cause,  but,  on  the  contrary, 
the  existence  of  probable  cause  was  conclusively  shown.  There  is  nothing  to 
indicate  that  defendant  was  actuated  by  malice,  or  that  it  had  any  desire  to  do 
otherwise  than  carry  out  one  of  the  objects  of  its  incorporation,  which  was  to 
prevent  persons  practicing  medicine  without  being  authorized  to  do  so  by  the 
statutes  of  the  state.  It  is  unnnecessary  to  determine  whether  the  plaintiff  was 
actually  engaged  in  the  practice  of  medicine  within  the  meaning  of  the  statute; 
it  being  sufficient  for  the  purposes  of  this  appeal  that  there  was  at  least  probable 
cause  for  the  defendant's  believing  that  he  was  doing  so.  Any  person  of  ordinary 
intelligence  would  have  probable  cause  for  believing  that  the  plaintiff  was 
engaged  in  the  practice  of  medicine  when  the  receipt  of  the  letters  from  the 
"Department  of  Gianderine,"  offering  to  cure  Dr.  Gannett  of  glanders,  plaintiff's 
subsequent  visits  to  the  hospital,  his  conduct  there,  leaving  the  medicine  which 


413 

he  did  with  directions  as  to  its  use,  and  permitting  himself  to  be  called  ;i  di 
are  considered.  These  fuels,  being  uncontradicted  and  unexplained,  justified  the 
defendant  in  doing  what  it  did.  The  trial  court  should  nave  bo  held  and  dis- 
missed the  complaint  at  the  close  of  plaintiff's  case,  and.  having  failed  to  do  that, 
should  have  directed  a  verdict  for  the  defendant  al  the  conclusion  of  the  whole 
case. 

SUFFICIENCY  OF  INDICTMENT— PRACTICING   MEDK  1XE  DEFINED 

State  v.  Van  Doran,  109  N.  C.  864;  U  8.  E.  82 

1891 

Where  a  statute  makes  two  or  more  distinct  acts,  constituting  separate  stages 
of  the  same  transaction,  indictable  (as,  in  the  case  at  bar,  the  acts  of  prac- 
ticing, or  attempting  to  practice,  medicine),  both  or  all  may  be  charged  in  a 
single  count  of  the  indictment.  If  the  distinct  acts,  representing  the  successive 
stages  of  the  transaction,  were  connected  in  the  statute  by  the  word  "or,"  it  was 
in  accordance  with  the  settled  precedents  in  drawing  the  indictment  to  couple  the 
independent  clauses  by  using  the  word  "and,"  instead  of  following  closely  the 
language  of  the  statute  and  using  "or."  The  reason  for  discarding  the  disjunc- 
tive, and  substituting  the  conjunctive,  was  that  usually  the  alternative  charge 
left  the  defendant  in  such  doubt  as  to  the  nature  of  the  offense  which  lie  was 
held  to  answer  that  he  could  not  intelligently  prepare  his  defense.  But  upon  the 
maxim,  cessante  ratione  legis  cessat  et  ipsa  lex,  the  better  rule  seems  now  to  be 
that  "or"  is  only  fatal  when  the  use  of  it  renders  the  statement  of  the  offense 
uncertain,  and  not  so  when  one  term  is  used  only  as  explaining  or  illustrating 
the  other,  or  where  the  language  of  the  law  makes  either  an  attempt  or  procure- 
ment of  an  act  or  the  act  itself,  in  the  alternative,  indictable.  1  Whart.  Crim 
Law,  Section  294;  U.  S.  v.  Potter,  6  McLean,  186.  Where  it  is  manifest  that 
the  defendant  cannot  be  embarrassed  by  uncertainty  in  preparing  his  defense  by 
reason  of  the  use  of  the  disjunctive  instead  of  the  conjunctive,  if  the  form 
ordinarily  used  in  drawing  the  indictment  should  be  treated  as  an  established 
precedent  essential  in  all  cases,  it  would  be  an  arbitrary  and  unreasonable  rule. 
Taking  the  language  of  the  statute  under  which  the  indictment  in  U.  S.  v.  Potter, 
supra,  was  drawn,  as  an  illustration,  it  would  be  difficult  to  explain  how  the 
accused  would  be  put  to  disadvantage  or  left  in  doubt  in  making  his  preparation 
to  meet  the  accusation,  because  he  was  charged  with  "cutting  or  causing  to  be 
cut,"  and  was  uncertain  whether  the  state  would  offer  testimony  tending  to 
prove  the  commission  of  the  one  act  or  the  other,  when  all  the  authorities 
concur  in  stating  the  rule  to  be  that,  if  the  usual  precedent  had  been  followed 
and  the  language  employed  in  the  indictment  had  been  "cutting  and  causing  to 
be  cut,"  the  prosecution  could  have  sustained  the  charge  by  proof  of  either  act, 
thus  leaving  the  defendant  in  equal  uncertainty.  10  Amer.  &  Eng.  Enc.  Law, 
"Indictment,"  p.  599cZ,  par.  lQh;  State  v.  Keeter,"  80  N.  C,  472;  Bish.  St.  Crimes, 
Section  244;  State  v.  Ellis,  4  Mo.,  475;  State  v.  Locklear,  Busb.  205;  Whart 
Crim.  PI.  &  Pr.,  Section  252.  But  if  we  admit  (as  many  authorities  tend  to 
prove)  that,  where  no  statute  affecting  procedure  has  been  passed  to  modify  it, 
it  is  a  rule  of  law  that  charges  of  the  acts  representing  the  different  stages  of 
the  same  transaction  must  be  coupled  by  the  word  "and"  in  the  indictment, 
still,  giving  a  fair  interpretation  to  our  curative  act  (Cole,  Section  1183),  we 
think  that  the  charge  is  expressed  "in  a  plain,  intelligible,  and  explicit  manner" 
(certainly  as  definitely  as  in  the  old  prescribed  precedent)  ;  that  sufficient  matter 
appears  in  the  indictment  to  enable  the  court  to  proceed  to  judgment ;  and  there- 
fore that  it  should  "not  be  quashed."  State  v.  Rinehart,  75  N.  C,  58;  State  v. 
Walker,  87  N.  C,  541;  State  v.  Lane,  4  Ired.,  113;  State  v.-Wilson,  67  N.  C, 
456;  State  v.  Sprinkle,  65  N.  C,  463;  State  v.  Parker,  Id.  453.  The  defendant 
moved  in  arrest  of  judgment  because  the  indictment  failed  to  specify  upon  what 
particular  person  he  practiced  medicine  or  surgery.  The  governing  principle  to 
be  applied  in  passing  upon  the  sufficiency  of  the  averments  in  an  indictment  is 
that  the  nature  of  the  offense  charged  should  appear  so  explicitly  and  plainly 
from  its  terms  as  to  leave  the  defendant  in  no  well-founded  doubt  in  preparing 
to  meet  the  accusation.  The  indictment  is  framed  under  section  5,  e.  181,  Laws 
1889.      It  is  not  essential   that   the   prosecution  should   show,   in   order   to   con- 


414 

vict  under  the  statute,  that  the  defendant  ever  prescribed  for  or  practiced  upon 
a  particular  patient;  but  it  would  be  sufficient  to  prove  that  he  held  himself  out 
to  the  public  as  a  physician  or  surgeon,  and  invited  or  solicited  professional 
employment  from  any  who  might  need  or  desire  such  service.  If  the  defendant 
merely  held  himself  out  to  the  public  as  a  physician  or  surgeon,  he  was  guilty 
of  the  offense  created  by  the  statute.  It  would  be  unreasonable,  therefore,  to 
declare  that  the  indictment  upon  its  face  is  defective  because  the  charge  is  not 
more  specific  in  describing  the  manner  of  practicing  or  attempting  to  practice. 
The  precedents  found  in  the  books,  and  used  in  prosecutions,  under  similar 
statutes,  tend  to  sustain  our  position.  Bish.  Dir.  &  Forms,  Sections  996-1000. 
The  offense  seems  to  be  described  with  sufficient  certainty  in  the  language  of 
the  law,  and  no  extrinsic  proof  is  needed  to  bring  it  within  its  terms.  This 
indictment  is  not  analogous  to  the  charge  of  disposing  of  mortgaged  property, 
drawn  under  the  acts  of  1873-74  and  1874-75,  because  in  that  case,  as  the  court 
declared,  the  words  "dispose  of,"  in  their  literal  sense,  were  worse  than  a  drag- 
net, and,  taken  with  reference  to  the  subject  at  hand,  they  might  mean  dis- 
position by  removing  from  the  county,  concealing,  selling,  or  by  the  actual  con- 
sumption of  such  as  were  fit  for  food."  State  v.  Pickens,  79  N.  C,  652.  Besides, 
there  were  certain  extrinsic  facts  that  it  was  essential  to  aver  and  prove.  State 
v.  Burns,  80  N.  C,  376.  The  offense  is  charged  in  the  indictment  in  such  terms 
"that  the  defendant  cannot  be  guilty  of  it  without  being  brought  within  the 
express  meaning  of  the  statute,  and  this  has  been  declared  a  test  of  its  sufficiency 
in  such  cases.  Young's  Case,  15  Grat.,  664.  It  has  been  stated  as  an  established 
rule  that  where  an  offense  is  prohibited  in  general  terms  in  one  section  of  the 
statute,  and  in  another  and  entirely  distinct  section  the  acts  of  which  the 
offense  consists  are  specified,  it  is  not  necessary  that  anything  but  the  general 
description  should  be  set  out  in  the  indictment.  State  v.  Casey,  45  Me.,  435. 
Where  the  very  nature  of  a  charge  is  such  as  to  involve  the  idea  of  attempting 
to  engage  in  a  business,  or  unlawfully  engaging  in  a  business,  prohibited  by 
statute,  there  is  not  the  same  reason  for  specifying  the  act  as  where  the  allega- 
tion is,  and  the  specific  proof  must  be,  that  the  accused  was  guilty  of  a  single 
unlawful  act,  which  would  constitute  a  distinct  offense  as  often  as  the  act  might 
be  repeated.  Bish.  St.  Crimes,  Section  1037;  People  v.  Adams,  17  Wend.,  475. 
Thus,  if  the  defendant  were  indicted  for  retailing,  every  distinct  sale  to  the  same 
Or  different  persons  would  constitute  a  criminal  offense,  while  separate  indict- 
ments would  not  lie  for  every  attempt  to  practice,  or  every  separate  solicitation 
of  practice,  within  the  statutory  period.  State  v.  Bryan,  98  N.  C,  644,  4  S. 
E.  Pep.,  522. 

It  is  too  late  to  question  the  constitutional  validity  of  a  statute,  enacted  in 
the  exercise  of  the  police  power  of  a  state,  and  purporting  to  protect  the  public 
against  imposition  and  injury  to  health  by  requiring  that  persons  who  engage 
in  the  practice  of  medicine  shall  submit  to  an  examination  conducted  by  learned 
physicians,  and  shall  produce  a  license  from  such  competent  masters  of  the  med- 
ical science.     Cooley,  Const.  Lim.,  *596. 

The  proviso  to  section  5  (under  which  the  bill  is  drawn)  declares  that  "this 
act  shall  not  apply  to  women  pursuing  the  avocation  of  midwife,  nor  to  reputa- 
ble physicians  or  surgeons  resident  in  a  neighborhing  state,  and  coming  into 
the  state  for  consultation  with  a  registered  physician  of  this  state."  The  comity 
thus  extended  to  reputable  physicians,  who  have  probably  been  subjected  to 
some  suitable  test  of  competency  (under  the  laws  of  the  states  in  which  they 
reside)  before  being  permitted  to  practice,  is  widely  different  in  its  nature  from 
the  attempt  to  grant  the  exclusive  privileges  coming  within  the  inhibition  of 
article  1,  section  7,  Const.  N.  C.  The  proviso  to  the  section  is  merely  an  excep- 
tion to  a  restrictive  or  prohibitory  law,  inserted  through  courtesy  to  sister  states, 
upon  the  assumption  that  they  have  provided  amply  for  the  protection  of  the 
health  of  their  citizens  by  legislation  similar  to  ours,  and  with  the  further 
safeguard  that  our  own  registered  physicians  alone  have  the  power  to  extend  this 
courtesy  to  non-residents  upon  whose  opinions  they  may  place  a  high  estimate. 

At  the  request  of  the  solicitor,  the  court  charged  the  jury  that  if  "the  defend- 
ant attended  any  sick  person,  examined  the  condition  of  such  sick  person,  and 
prescribed  the  medicine  of  his  own  make  for  the  sick  person,  and  held  himself 
out  to  the  public  as  competent  to  prescribe  the  medicine  of  his  own  make  in  those 


415 

cases  wherein  it  was  the  proper  remedy  in  his  opinion,  and  did  prescribe  it  in 
such  cases,  the  defendant  had  violated  the  criminal  law,"  and  should  be  found 
guilty.  A  witness  testified  that  the  defendant  examined  his  throat,  diagnosed 
the  disease,  declaring  it  to  be  catarrh,  said  he  would  cure  the  witness 
and  furnished  some  pills  that  he  had  been  selling  as  a  proprietary 
medicine.  Another  witness  testified  that  the  defendant  stated,  when  on  trial 
before  the  justice  of  the  peace,  that  he  was  a  practicing  physician  in  Washington 
county.  Mr.  Arniistead  testified  that  the  defendant  told  him  that  he  had  a 
right  to  practice  medicine,  and  intended  to  do  it;  that  he  did  not  understand 
the  defendant  to  say  that  he  used  only  his  own  proprietary  medicine.  Dr. 
Murray  visited  Mrs.  Mathews,  and  found  the  defendant  in  attendance  upon  her, 
when  he  said  that  he  had  as  much  right  to  practice  medicine  as  Dr.  Murray,  a 
registered  physician,  had.  He  had  medicine  in  the  sick-room,  and  said  he  was 
giving  it  to  the  patient,  who  was  having  fits, — Indian  hemp  and  Pulsatilla.  The 
defendant,  when  examined  in  his  own  behalf,  said  that  he  had  been  called  to 
see  plenty  of  sick  people,  and,  "after  examining  them,"  if  it  was  appropriate, 
prescribed  his  medicine.  We  think  that  the  instruction  embodied  the  law 
applicable  to  the  testimony  bearing  upon  the  charge.  An  unlicensed  person, 
claiming  to  be  a  physician,  and  holding  himself  out  to  the  world  as  such,  cannot, 
after  examining  a  patient  who  has  asked  his  services,  diagnosing  the  disease, 
fixing  an  amount  or  price  for  which  he  will  cure  the  patient,  and  giving  him  a 
prescription,  evade  the  law  by  proving  that  the  medicine  administered  was  a 
proprietary  remedy  prepared  and  sold  by  him.  If  such  were  the  law,  a 
pretender,  with  a  half  dozen  or  more  medicines  of  his  own  manufacture,  and 
marked  as  nostrums  suitable  for  certain  classes  of  diseases,  might  declare  himself 
a  graduate  in  medicine,  and  capable  of  curing  diseases  of  all  kinds.  After  exam- 
ining the  patient,  and  determining  which  one  of  his  ready-made  preparations 
would  prove  the  panacea  to  meet  the  particular  symptoms,  might  administer  it, 
and  thus  defeat  and  evade  this  salutary  law  passed  for  the  purpose  of  pre- 
venting quacks  from  masquerading  as  trained  medical  men.  A  vendor  of  patent 
medicines,  who  does  not  pretend  to  diagnose  disease  and  determine  which  of  his 
remedies  is  proper  in  a  particular  case,  is  not  a  violator  of  this  statute;  but  that 
avocation  cannot  be  used  to  shelter  one  who  is  practicing  medicine,  and  holding 
himself  out  as  a  physician,  and  who  varies  his  prescriptions  to  meet  symptoms 
discovered  on  his  own  examination.  We  think  that  the  evidence  warranted  the 
judge  in  giving  the  instructions  asked  by 'the  solicitor,  and  in  adding  that,  if 
"the  defendant  had  practiced  in  the  county  [Washington]  within  two  years 
without  first  having  registered  and  obtained  a  certificate, — that  is,  prescribed 
for  sick  persons  or  held  himself  out  to  the  public  as  a  physician  or  surgeon, — 
he  was  guilty."  State  v.  Bryan,  supra.  Defendant's  counsel  in  his  brief  says, 
after  enumerating  the  exceptions  to  which  we  have  adverted,  that  all  others  are 
abandoned.  He  does  not  insist  upon  the  motion  to  quash  for  want  of  the  nega- 
tive averments  that  the  defendant  was  not  a  reputable  physician,  etc.,  and  his 
abandonment  must  he  considered  as  complete  a  waiver  as  an  agreement  to  cure 
the  defect,  if  any,  except  by  amendment,  would  have  been.  There  is  no  error, 
and  the  judgment  is  affirmed. 

Shepherd,  J.  (dissenting).  Fully  sympathizing,  as  I  do,  in  all  reasonable 
efforts  to  free  the  administration  of  the  criminal  law  from  the  refinements  of 
needless  technicalities,  I  am  nevertheless  unable  to  concur  with  my  brethren  in 
sustaining  the  indictment  in  the  present  case.  The  defendant  is  indicted  under 
section  5,  c.  181,  Acts  1889,  which  makes  it  a  criminal  offense  for  any  person  to 
"practice,  or  attempt  to  practice,  medicine  or  surgery  in  this  state"  without 
having  first  registered,  and  in  other  respects  complied  with  the  law.  It  thus 
appears  that  the  statute  has  expressly  created  two  offenses,  viz.,  the  commission 
of  the  inhibited  act  and  the  attempt  to  commit  it.  These  offenses  are  so  distinct 
that  in  the  latter  a  greater  particularity  is  required  in  the  indictment;  this  court 
having  conclusively  settled  in  State  v.  Colvin,  90  N.  C,  717,  that  in  such  indict- 
ments some  overt  acts  of  the  accused,  which  in  the  ordinary  course  of  things 
would  result  in  the  commission  of  the  particular  offense,  must  be  alleged  and 
proved.  The  offenses  being  distinct,  it  seems  quite  clear  to  me  that  they  cannot 
be  charged  with  the  alternative,  and  I  am  unable  to  find  a  single  authority  in 
which  such  an  indictment  has  ever  been  sustained.    In  addition  to  the  elementary 


416 

works  on  the  criminal  law,  we  have  an  express  decision  of  this  court  that  such 
a  bill  is  fatally  defective.  State  v.  Harper,  64  N.  C,  130.  Even  the  very  statute 
(Code,  section  1183)  which  does  away  with  formal  objections,  etc.,  provides 
that  the  offense  shall  be  set  forth  "in  a  plain,  intelligible,  and  explicit  manner;" 
and  how  can  it  be  said  that  this  requirement  is  complied  with"  by  charging  the 
defendant,  as  Mr.  Archbold  puts  it  ( Crim.  Pr.  &  PI.  278),  "with  having  done 
so  or  so?"  It  is  true  that  there  are  some  authorities  which  hold  that  the  use 
of  the  disjunctive  is  not  fatal  when  the  acts  represent  successive  stages  of  one 
criminal  transaction,  as  when  the  charging  is  "cutting  or  causing  to  be  cut;" 
but  it  must  be  noted  that  these  cases  relate  only  to  one  distinct  offense,  and  rest 
upon  the  idea  that  one  part  is  used  only  as  expressing  or  illustrating  the  other. 
Mr.  Wharton  (Crim.  Law,  section  294)  shows  that  the  weight  of  authority  is 
even  against  this  practice;  for  he  says  that  if  the  charge  is  "in  the  disjunctive, 
as  that  he  'murdered  or  caused  to  be  murdered,'  'forged  or  caused  to  be  forged,' 
'burned  or  caused  to  be  burned,'  'sold  spirituous  or  intoxicating  liquors,'  *  * 
*  it  is  bad  for  uncertainty."  After  citing  some  few  American  decisions  to  the 
contrary,  he  remarks  that  "the  principle  in  those  cases  seems  to  be  that  'or'  is 
only  fatal  when  it  renders  the  statement  of  the  offense  uncertain,  and  not  so 
when  one  term  is  used  only  as  explanatory  or  illustrating  the  other."  It  is 
very  difficult  to  understand  how  the  mere  charge  that  one  attempted  to  do  an 
act  can  explain  or  illustrate  that  act  when  already  completed.  I  think  that  we 
should  adhere  to  the  well-settled  rule  that  alternative  charges  of  distinct 
offenses  ought  not  to  be  sustained. 


EXEMPTING  PEIOR  PRACTITIONERS  UPHELD 

State  v.  Call,  121  N.  C.  643;  28  8.  E.  517 

1897 

The  defendant  is  indicted  for  practicing  medicine  in  violation  of  the  law, 
His  counsel  contends  that  the  law  is  contrary  to  the  state  constitution,  Avhich 
forbids  exclusive  privileges  and  emoluments  to  any  set  of  men,  and  which  pro- 
hibits monopolies  and  perpetuities;  and,  further,  that  it  is  obnoxious  to  the  four- 
teenth amendment  to  the  constitution  of  the  United  Sates,  which  prohibits  any 
state  to  deny  to  any  person  the  equal  protection  of  the  laws.  That  the  statute  is 
not  in  violation  of  the  state  constitution  is  thoroughly  discussed  and  held  in 
State  v.  Van  Doran,  109  N.  C,  864,  14  S.  E.,  32.  It  is  not  to  be  questioned  that 
the  lawmaking  power  of  a  state  has  the  right  to  require  an  examination  and 
certificate  as  to  the  competency  of  persons  desiring  to  practice  law  or  medicine; 
to  teach,  to  be  druggists,  pilots,  engineers,  or  exercise  other  callings,  whether 
skilled  trades  or  professions,  affecting  the  public  and  which  require  skill  and 
proficiency.  To  require  this  is  an  exercise  of  the  police  power  for  the  protection 
of  the  public  against  incompetents  and  imposters,  and  is  in  no  sense  the  creation 
of  a  monopoly  or  special  privileges.  The  door  stands  open  to  all  who  possess  the 
requisite  age  and  good  character,  and  can  stand  the  examination  which  is  exacted 
of  all  applicants  alike.  The  defendant,  however,  contends  that  the  statute  is 
unconstitutional  on  the  additional  ground  that  it  exempts  from  its  requirements 
those  physicians  who  were  already  practicing  medicine  and  surgery  in  this  state 
on  March  7,  1885.  The  first  statute,  making  it  indictable  to  practice  medicine 
and  surgery  without  an  examination  by  the  state  board  of  medical  examiners, 
and  a  license  therefrom,  was  enacted  at  the  session  of  1885,  and  was  made  pros- 
pective, so  as  to  apply  only  to  those  who  should  begin  the  practice  of  medicine 
and  surgery  thereafter.  This  was  not  unreasonable.  It  was  fair  to  assume  that 
those  already  in  the  practice,  many  of  whom  had  grown  gray  in  the  service  of 
humanity  and  the  alleviation  of  suffering,  had  already  received  that  public 
approbation  which  was  a  sufficient  guaranty  of  their  competency,  and  should  not 
be  needlessly  subjected  to  the  humiliation  of  an  examination,  while  those  already 
in  practice,  who  had  proved  incompetent,  had  been  equally  stamped  with  public 
disapproval.  When  the  act  of  1889  was  enacted,  it  recognized  that  the  new 
legislation  had  been  prospective  by  the  act  of  1885,  and  March  7,  1885  was  made 
the  dividing  line,  those  practicing  medicine  and  surgery  before  that  date  being 
left   to  the   test  of  the   public  approval  or   disapproval   acquired   by  them,   and 


417 

those  beginning  practice  since  that  date,  having  presumably  knowledge  of  that 
statute,  were  required  to  undergo  the  examination  and  obtain  the  license  exacted 
by  it.  The  statute,  bearing  alike  upon  all  individuals  of  each  class,  is  not  a  dis- 
crimination forbidden  by  the  state  constitution  nor  by  the  fourteenth  amend- 
ment. It  has  been  frequently  adjudged  by  the  supreme  court  of  the  United  States 
that  the  fourteenth  amendment  docs  not  restrict  the  powers  of  the  state  when 
the  statute  applies  equally  to  all  persons  in  the  same  class,  and  that  the  state  is 
the  judge  of  the  classification.  A  classification  of  physicians  practicing  before 
the  act  and  of  those  beginning  thereafter,  and  distinguishing  between  those 
having  the  diplomas  of  a  medical  college  and  those  not,  was  held  to  be  reason- 
able,  and   within   the   legislative   discretion. 


OBSTETRICS  PRACTICING  MEDICINE— INDICTMENT 

State  v.  Welch,  129  N.  C.  519;  Jo  B.  E.  126 
1901 
The  defendant  is  indicted  for  practicing  medicine  or  surgery  without  license. 
The  defendant  moved  to  quash  the  bill,  and  also  in  arrest  of  judgment,  because: 
(1)  It  did  not  negative  the  provision  in  the  statute  allowing  persons  to  pursue 
the  avocation  of  midwifery.  (2)  The  bill  fails  to  allege  the  defendant  practiced 
for  '"fee  or  reward."  (3)  The  bill  alleges  defendant  ''unlawfully  and  wilfully 
did  practice  or  attempt  to  practice  medicine  or  surgery,"  and  the  offenses  of 
practicing  and  attempting  to  practice  are  so  distinct  that  the  charge  is  not  set 
forth  in  "a  plain,  intelligent,  and  explicit  manner."  (4)  That  the  words 
"register  and  obtain"  license  should  be  in  the  bill,  and  not  merely  a  failure  to 
obtain  license.  The  motion  being  overruled,  the  defendant  excepted.  The  provi- 
sion as  to  the  exception  of  "women  practicing  as  midwives"  is  in  the  proviso, 
and,  instead  of  constituting  a  part  of  the  offense,  withdraws  a  certain  class  from 
its  operation.  Hence  the  bill  need  not  negative  the  defendant  belonging  to  that 
class.  That  would  be  a  matter  of  defense,  and,  indeed,  it  affirmatively  appears 
in  the  evidence  that  the  defendant  is  not  a  woman.  This  statute  does  not  con- 
tain the  words  "without  fee  or  reward."  The  first  two  exceptions  are  passed 
upon  and  denied  in  State  v.  Call,  121  N.  C,  643,  28  S.  E.,  517.  The  third  excep- 
tion is  fully  discussed  and  held  invalid  in  State  v.  Van  Doran,  supra.  The 
words  excepted  to  in  the  fourth  ground  of  defendant's  motion  are  copied  from 
the  bill  in  Van  Doran's  Case,  which  was  cited  again  in  State  v.  Call,  supra,  which 
case  says  "an  approved  form  of  indictment  under  the  act  of  1889  may  be  found 
in  State  v.  Van  Doran."  Indeed,  as  the  bill  charges  that  the  defendant  did  not 
exhibit  to  the  clerk  the  license  nor  make  the  oath  necessary  to  procure  registra- 
tion, and  did  practice,  "not  then  and  there  haA'ing  obtained  from  said  clerk  of 
the  court  a  certificate  of  registration,"  it  certainly  charges  that  the  defendant 
"did  not  register  and  obtain  license."  The  evidence  was  uncontradicted  that  the 
defendant  practiced  obstetrics.  The  defendant  offered  no  evidence,  and  requested 
the  court  to  charge  the  jury  "that  the  practice  of  obstetrics  was  not  in  any  sense 
the  practice  of  medicine  or  surgery."  This  the  court  refused,  and  told  the  jury, 
if  they  believed  the  evidence,  to  find  the  defendant  guilty.  In  this  also  there  was 
no  error. 


PRACTICE   OF  MEDICINE— OSTEOPATHY— USE    OF   TITLE 

State  v.  McKnight,  131  N.  C.  Ill';  42  S.  E.  580;  59  L.  R.  A.  181 

1902 

The  law  of  1885  amended  Section  3132  of  the  Code  with  regard  to  practicing 
without  license  by  adding  thereto:  "And  any  person  who  shall  begin  the  practice 
of  medicine  or  surgery  in  this  state  for  a  fee  or  reward,  after  the  passage  of 
this  act,  without  first  having  obtained  license  from  said  board  of  examiners, 
shall  not  only  not  be  entitled  to  sue  for  or  recover  before  any  court  any  medical 
bill  for  services  rendered  in  the  practice  of  medicine  or  surgery,  or  any  of  the 
branches  thereof,  but  shall  also  be  guilty  of  a  misdemeanor,"  etc.     In  this  case 


418 

the  question  was  the  simple  one,  whether  one  who  practices  "osteopathy"  is 
indictable  if  he  has  not  procured  the  license  required  for  any  one  by  the  above 
section  before  beginning  "the  practice  of  medicine  or  surgery."  A  special  verdict 
of  the  jury  found  that  the  defendant's  "treatment  of  his  patient  did  not  consist 
in  the  administration  of  drugs  or  medicines,  but  in  the  manipulation,  kneading, 
flexing  and  rubbing  of  the  body  of  his  patients  and  in  the  application  of  hot 
and  cold  baths,  and  in  prescribing  rules  for  diet  and  exercise;  .  ,  .  that  the 
defendant  was  engaged  in  the  general  practice  of  that  science;  that  he  also  pre- 
scribed hypnotism  and  suggestion  under  hypnotism."  It  also  found  that  "upon 
two  occasions  he  used  a  small  surgeon's  knife  in  opening  an  abscess  in  the  mouth 
of  one  Shedd,  but  charged  no  fee  for  his  services."  The  Court  says  that  all  it  can 
declare  on  the  facts  found  in  the  special  verdict  is  that  the  defendant's  practice 
was  not  the  practice  of  medicine  or  surgery,  and  no  license  from  the  medical 
board  of  examiners  was  required.  It  says  that  the  only  surgery  was  without 
fee  or  reward,  an  act  of  charity  and  that  was  incidental  and  not  in  the  usual 
course  of  the  practice  of  osteopathy.  It  can  not  be  said  that  one  practices 
"medicine  and  surgery"  when  he  uses  neither  drugs,  medicines  or  surgery.  Sec- 
tion 3124  requires  the  "board  of  medical  examiners"  to  examine  all  applicants, 
"to  practice  medicine  or  surgery  in  anatomy,  physiology,  surgery,  pathology, 
medical  hygiene,  chemistry,  pharmacy,  materia  medica,  therapeutics,  obstetrics 
and  the  practice  of  medicine."  It  can  not  be  conceived  that  the  legislature  would 
require  the  above  examination  for  a  profession  which  eschews  the  use  of  drugs 
and  surgery.  As  to  the  argument  that  the  science,  if  it  be  a  science,  of  oste- 
opathy is  an  imposition,  the  court,  legally  speaking,  knows  nothing.  It  only 
knows  that  the  practice  of  osteopathy  "is  not"  the  practice  of  medicine  or  sur- 
gery as  is  commonly  understood,  and  therefore  it  is  not  necessary  to  have  a 
license  from  the  board  of  medical  examiners  before  practicing  it.  If  it  is  a 
fraud  and  imposition,  and  injury  results,  the  osteopath  is  liable  both  socially 
and  criminally.  Doubtless  there  is  an  appeal  to  the  imagination,  but  that  is  a 
necessary  ingredient  in  all  systems  of  healing.  The  aim  of  medical  science,  now 
probably  the  most  progressive  of  all  the  professions,  is  simply  to  "assist  nature." 
Osteopathy  proposes  to  do  that  by  other  methods  than  by  the  use  of  medicines, 
or  the  surgeon's  knife.  Moreover,  the  court  says  that  it  attaches  no  weight  to 
the  argument  that  the  defendant  hung  out  his  sign  and  advertised  himself  as 
"doctor."  The  special  verdict  found  that  he  had  a  diploma  from  a  college  of 
osteopathy  bestowing  that  title  upon  him.  There  are  many  kinds  of  doctors 
besides  medicine — as  doctors  of  law,  doctors  of  divinity,  doctors  of  physics  and 
veterinary  doctors  and  others  still.  Besides  in  this  country,  so  far  at  least  as 
titles  go,  "honors  are  easy."  If  the  General  Assembly  shail  deem  osteopathy  a 
legitimate  calling  it  may  see  fit,  possibly,  to  protect  educated  and  skilled  prac- 
titioners by  requiring  an  examination  and  license  by  learned  osteopaths  of  appli- 
cants for  license,  but  certainly  the  examination  would  be  on  subjects  appropriate 
to  secure  competency  therein,  and  not  on  an  entirely  different  course  such  as  that 
prescribed  for  applicants  to  practice  medicine  and  surgery.  Dentistry  is  not  the 
"practice  of  medicine  of  surgery,"  but  it  is  a  related  profession,  as  is  also  phar- 
macy, and  each  has  its  prescribed  course  of  examinations  of  applicants  for 
license.  Whether  the  same  rights  and  dignity  shall  be  bestowed  on  osteopathy 
is  a  matter  for  the  general  assembly,  or  if  it  is  found  to  be  a  fraud,  its  exercise 
may  be  made  indictable.  It  seems  that  it  more  nearly  approximates  nursing  in 
many  respects    (though  differing  in  others)    when  taught  as  a  profession. 


CONSTITUTIONAL  LIMITS  TO  SCOPE  OF  MEDICAL  PEACTICE  ACTS 

State  v.  Biggs,  133  N.  C.  129;  46  S.  E.  401;  64  L.  R.  A.  139;  98  Am. 

St.  Rep.  131 
1903 

The  Supreme  Court  refers  to  the  incorporation  of  "The  State  Medical 
Society,"  in  1858-59,  and  the  sustaining,  but  not  without  great  hesitation,  of  the 
medical-practice  act,  passed  in  1885,  and  says,  amdng  other  things,  that,  after 
the  decisions  in  State  v.  Call,  121  N.  C,  646,  and  State  v.  McKnight,  131  N.  C, 


419 

723,  moderation  and  wisdom  would  have  suggested  that  the  matter  rest.  Those 
who  wished  to  be  treated  by  practitioners  of  medicine  and  surgery  had  the 
guaranty  that  such  practitioners  had  been  duly  examined  and  found  competent 
by  a  board  of  men  eminent  in  that  high  and  honorable  profession,  and  those 
who  had  faith  in  treatment  by  methods  not  included  in  the  "practice  of  medicine 
and  surgery,"  as  usually  understood,  had  reserved  to  them  the  right  to  practice 
their  faith  and  be  treated,  if  they  chose,  by  those  who  openly  and  avowedly  did 
not  use  either  surgery  or  drugs  in  the  treatment  of  diseases.  The  courts  have 
declared  that  they  possessed  this  right,  and  that  the  legislature  could  not,  under 
the  constitution,  restrict  all  healing  to  any  one  school  of  thought  or  practice. 
What  is  "the  practice  of  medicine  and  surgery"  is  as  well  understood,  and  its 
limits,  as  the  practice  of  dentistry.  The  courts  have  also  held  that  of  the  many 
schools  of  "medicine  and  surgery"  the  legislature  could  not  prescribe  that  any  one 
was  orthodox  and  the  others  heterodox,  but  that  those  professing  the  different 
systems — "allopathic,"  "homeopathic,"  "Thompsonian,"  and  the  like — shrould  be 
examined  on  a  course  such  as  is  taught  in  the  best  colleges  of  that  school  of 
practice,  but  that  it  is  not  essential  that  a  member  of  each,  or  of  any  special 
school,  should  be  on  the  board  of  examiners.  It  is  common  knowledge  that  rail- 
road charters  are  drafted  by  "promoters,"  and  hence  should  be  construed  most 
strongly  against  the  grantees  and  in  the  interest  of  the  public.  The  same  con- 
struction can  fairly  be  applied  to  act  of  1903,  amendatory  of  the  charter  of  this 
corporation,  in  whose  supposed  interests  it  was  evidently  drafted,  and  not  solely 
in  the  interest  of  the  public.  Under  the  guise  of  "construction"  of  those  well- 
understood  terms,  the  "practice  of  medicine  and  surgery,"  the  act  essays  to 
provide  that  the  expression  "  'practice  of  medicine  and  surgery'  shall  be  con- 
strued to  mean  the  management  'for  fee  or  reward'  of  any  case  of  disease, 
physical  or  mental,  real  or  imaginary,  with  or  without  drugs,  surgical  operation, 
surgical  or  mechanical  appliances,  or  by  any  other  method  whatsoever."  That 
is,  the  practice  of  surgery  and  medicine  shall  mean  practice  without  surgery  or 
medicine,  if  a  fee  is  charged.  If  no  fee  is  charged,  then  the  words  "surgery  and 
medicine"  drop  back  to  their  usual  and  ordinary  meaning,  as  by  long  usage 
known  and  accustomed.  Where,  then,  is  the  protection  to  the  public,  if  such 
treatment  is  valid  when  done  without  fee  or  reward?  Yet,  unless  the  act  con- 
fers, and  is  intended  solely  to  confer,  protection  on  the  public,  it  is  invalid.  The 
legislature  can  not  forbid  one  man  to  practice  a  calling  or  profession  for  the 
benefit  or  profit  of  another.  The  act  is  too  sweeping.  Beside,  the  legislature 
could  no  more  enact  that  the  "practice  of  medicine  and  surgery"  shall  mean 
"practice  without  medicine  and  surgery"  than  it  could  provide  that  "two  and 
two  make  five,"  because  it  can  not  change  a  physical  fact.  And  when  it  forbade 
all  treatment  of  all  diseases,  mental  or  physical,  without  surgery  or  medicine, 
or  by  any  other  method,  for  a  fee  or  reward,  except  by  an  M.D.,  it  attempted  to 
confer  a  monopoly  on  that  method  of  treatment,  and  this  is  forbidden  by  the 
constitution.  This  is  a  free  country,  and  any  man  has  a  right  to  be  treated  by 
any  system  he  chooses.  The  law  can  not  decide  that  any  one  system  shall  be 
the  system  he  shall  use.  If  he  gets  improper  treatment  for  children  or  others 
under  his  care,  whereby  they  are  injured,  he  is  liable  to  punishment;  but  whether 
it  was  proper  treatment  or  not  is  a  matter  of  fact,  to  be  settled  by  a  jury  of  his 
peers,  and  not  a  matter  of  law,  to  be  decided  by  a  judge,  nor  prescribed  before- 
hand by  an  act  of  the  legislature.  The  public  has  a  .right  to  know  that  those 
holding  themselves  out  as  members  of  that  ancient  and  honorable  profession — the 
medical  profession — are  competent  and  duly  licensed  as  such.  The  legislature 
can  exert  its  police  power  to  that  end,  because  it  is  a  profession  whose  practice 
requires  the  highest  skill  and  learning.  But  there  are  methods  of  treatment 
which  do  not  require  much  skill  and  learning,  if  any.  Patients  have  a  right  to 
use  such  methods  if  they  wish,  and  the  attempt  to  require  an  examination  of  the 
character  shown  for  the  application  of  such  treatment  is  not  warranted  by  any 
legitimate  exercise  of  the  police  power.  In  this  case,  the  court  says,  the  defend- 
ant was  found  guilty  of  the  following  acts,  and  no  more:  (1)  Administering 
massage  baths  and  physical  culture;  (2)  manipulating  muscles,  bones,  spine  and 
solar  plexus;  (3)  kneading  the  muscles  with  the  fingers  of  the  hand;  (4)  advis- 
ing his  patients  what  to  eat  and  what  not.  And  all  this  without  prescriptions, 
without  any   drugs   or   surgery.     These   acts,  by   the  terms   of   the  statute,   are 


420 

harmless  and  not  indictable,  "unless  done  for  fee  or  reward."  There  is  nothing 
in  this  treatment  that  calls  for  an  exercise  of  the  police  power  by  way  of  an 
examination  by  a  learned  board  in  obstetrics,  therapeutics,  materia  medica  and 
the  other  things,  a  knowledge  of  which  is  so  properly  required  for  one  who  would 
serve  the  public  faithfully  and  honorably  as  a  doctor  of  medicine.  And  the  court 
reverses  a   conviction   of  unlawfully   practicing   medicine   and   surgery. 


EXAMINING    BOARDS    AND    REDRESS    OF    REJECTED    APPLICANTS- 
EVIDENCE 

Ewbank  v.  Turner  et  al.,  13't  N.  C.  77;  46  8.  E.  508 
1903 

The  power  of  the  legislature  to  require  examination  and  certificate  as  to  the 
competency  of  persons  desirinig  to  practice  professions  or  skilled  trades  is  upheld, 
the  court  calling  attention  to  the  fact  that  the  state  exercises  this  police  power 
for  the  protection  of  the  public  from  impostors  and  incompetents,  and  not  to  the 
end  of  conferring  exclusive  privileges  on  any  particular  body  of  men,  for  to  do 
the  latter  is  prohibited  by  the  state  constitution.  It  is  a  power  to  be  exercised 
for  the  public  good,  and  the  legislature  is  to  judge  of  the  method  of  appointing 
the  examiners,  and  can  prescribe  the  nature  of  the  examination,  unless  it  appear 
plainly  that  the  power  to  regulate  is  used  in  reality  in  violation  of  the  guaran- 
ties in  the  constitution,  and  for  the  purpose  of  conferring  exclusive  privileges, 
and  not  solely  for  the  protection  of  the  public.  The  code  provides  for  a  board 
of  examiners,  to  consist  of  six  members  of  the  North  Carolina  Dental  Society, 
to  be  elected  by  said  society.  The  presumption  is  that  this  honorable  body  will 
elect  six  of  its  ablest  and  most  prominent  members  for  the  important  duty 
of  keeping  up  the  standard  of  their  profession  by  a  just,  reasonable  and  impar- 
tial examination  of  applicants.  Should  this  important  duty  be  neglected  and 
incompetent  or  unworthy  members  be  chosen,  the  remedy  is  by  legislative  repeal, 
or  change  of  the  method  of  selecting  the  board.  Section  3151  provides  that 
"said  board  shall  grant  a  certificate  of  proficiency  in  the  knowledge  and  practice 
of  dentistry  to  all  applicants  who  shall  undergo  a  satisfactory  examination,  and 
who  shall  receive  a  majority  of  votes  of  said  board  on  such  proficiency."  The 
lawmaking  power  having  intrusted  such  examination  to  the  board  thus  con- 
stituted, and  required  that  the  examination  shall  be  satisfactory  to  them,  and 
such  requirements  being  reasonable  and  in  violation  of  no  constitutional  pro- 
vision, the  courts  can  not  intervene  and  direct  the  board  to  issue  a  certificate  to 
one  who  the  majority  of  the  board  have  held  has  not  passed  a  satisfactory 
examination,  because,  on  the  examination  of  experts,  the  court  or  jury  might 
think  the  examination  of  the  plaintiff  ought  to  have  been  satisfactory  to  the 
board.  That  is  a  matter  resting  in  the  consciences  and  judgment  of  the  board, 
under  the  provisions  of  the  law,  and  the  courts  can  not  by  a  mandamus  com- 
pel them  to  certify  contrary  to  what  they  have  declared  to  be  the  truth.  Had 
the  board  refused  to  examine  the  applicant  on  his  compliance  with  the  regula- 
tions, the  court  could  by  mandamus  compel  them  to  examine  him;  but  it  can 
not  compel  them  to  issue  him  a  certificate,  when  the  preliminary  qualification 
required  by  law,  that  the  applicant  shall  be  found  proficient  and  competent  by 
the  examining  board,  is  lacking.  One  remedy,  if  there  should  ever  happen  such 
abuse  of  trust  as  that  the  board  "wrongfully,  unlawfully,  unjustly,  arbitrarily, 
and  without  just  cause  or  reason"  declined  to  issue  a  license,  would  be,  as 
already  stated,  by  the  legislature  repealing  the  act,  or  providing  a  different 
method  of  selecting  the  board,  or  regulating  the  method  or  course  of  examina- 
tion, or  prescribing  a  review  of  the  finding  of  the  board  by  some  other  body,  if 
the  General  Assembly  should  think  proper.  Another  remedy  would  be  to  follow 
the  precedent  set  by  applicants  for  license  to  practice  law,  who,  when  rejected, 
study  their  prescribed  course  over  again,  and  stand  for  examination  at  the  next 
regular  day.  This  is,  perhaps,  the  most  sensible  course,  for  no  man  ever  knows 
his  profession  too  well.  Another  remedy  still:  If  the  applicant  avers  his  rejec- 
tion was  caused  by  improper  motives,  his  remedy  is  an  action  for  damages 
against  the  individuals  composing  the  board;  alleging  bad  faith  or  arbitrary 
disregard   of   their   duties,   or   improper   animus   against   the   plaintiff,   or   other 


421 

malversation  in  their  discharge  of  duty.  In  such  action  it  might  be  difficult  to 
prove  the  charges,  unless  by  declarations  made  by  the  defendants  themselve 
certainly  the  examination  paper  of  the  plaintiff  himself  would  not  be  competent, 
in  the  first  place,  since,  though  experts  might  testify  to  its  sufficiency  in  their 
judgment,  that  does  not  negative  the  good  faith  of  the  board,  whose  judgment, 
if  exercised  in  good  faith,  is  a  protection  to  them.  Malicious,  illegal,  or  arbi- 
trary action  must  be  shown  by  direct  evidence,  and  not  by  inference  tu  be  drawn 
by  the  jury  from  the  fact  that  the  opinion  of  witnesses  introduced  as  experts 
may  differ  from  the  opinion  of  a  legal  board  of  examiners  as  to  the  sufficiency 
of  the  examination.  It  is  only  when  there  shall  be  other  evidence  first  intro- 
duced, laying  a  sufficient  ground  for  a  charge  of  bad  faith  and  misconduct,  that 
the  examination  paper  of  the  plaintiff  could  possibly  be  competent,  and  then 
only  in  corroboration  of  the  evidence  first  introduced.  And  in  no  aspect  could 
the  papers  of  other  applicants  at  the  same  time  and  place  be  put  in  evidence, 
for,  even  if  they  had  been  admitted  to  practice  on  insufficient  answers,  the 
plaintiff  was  not  hurt  thereby,  and  the  introduction  of  irrelevant  matter  would 
only  confuse  the  issue,  which  would  be  whether  the  plaintiff  was  refused  a  cer- 
tificate, though  he  was  shown  to  be  qualified  by  his  answers,  by  the  arbitrariness, 
improper  animus,  and  misconduct  of  the  examining  board. 


FAILURE  TO  REGISTER  NOT  A  DEFENSE  AGAINST  MALPRACTICE  SUIT 

Musser's  Executor  v.  Chase,  29  Ohio  St.  577 

1876 

The  original  action  was  brought  by  the  defendant  in  error  (Melvina  Chase) 
against  Jacob  Musser,  in  life,  to  recover  damages  for  the  careless  and  unskillful 
treatment,  by  the  defendant,  of  a  tumor  on  the  plaintiff's  nose,  whereby  she  had 
wholly  lost  that  organ.  Pending  the  suit  the  defendant  died,  and  the  action  was 
revived  against  his  executor,  the  plaintiff  in  error.  The  trial  resulted  in  a  judg- 
ment in  the  plaintiff's  favor  for  $3,000,  in  which  no  reversible  error  was  found. 

The  Supreme  Court  of  Ohio  says  that  under  the  act  of  1868  it  is  made  a  penal 
offense  for  any  person  to  practice  medicine  in  any  of  its  departments  "who  has 
not  attended  two  full  courses  of  instruction  and  graduated  at  some  school  of 
medicine,"  unless  such  person  "has  been  continuously  engaged  in  the  practice  of 
medicine  for  a  period  of  ten  years  or  more." 

Conceding  that  the  practice  of  Musser,  as  shown  in  this  case,  was  in  violation 
of  this  statute,  it  does  not  follow  that  the  plaintiff,  if  injured  by  his  malpractice, 
is  without  remedy  by  a  civil  action.  The  court  fully  recognizes  the  principle  that 
no  right  of  action  arises  on  a  transaction  prohibited  by  law;  but  the  principle  does 
not  apply  in  this  case.  The  object  of  this  statute  was  not  to  make  the  practice  of 
medicine  unlawful,  but  simply  to  protect  the  community  from  the  evils  of  empir- 
icism. Whether  the  principle  would  apply  if  it  were  shown  that  the  plaintiff, 
at  the  time  of  employment,  had  knowledge  that  the  defendant  was  excluded  from 
the  right  to  practice  his  specialty  (to-wit,  the  treatment  of  cancers)  by  this  act, 
we  need  not  inquire,  as  it  is  nowhere  in  this  record  shown  that  she  had  such  knowl- 
edge. It  is  enough  now  to  say  that  the  duty  and  risk  of  ascertaining  the  quali- 
fications of  the  defendant  to  practice  was  not  devolved  by  this  statute  on  the 
plaintiff,  and  therefore  in  no  sense  can  she  be  regarded  as  a  particeps  criminis. 
The  proposition  on  this  point  contained  in  the  defendant's  first  request  to  charge 
the  jury  is  a  mere  abstraction.  Such  knowledge  was  not  alleged  against  her,  nor 
was  it  made  the  subject-matter  of  proof.  To  hold  in  such  case  that  public  policy 
forbids  a  civil  remedy  for  the  injury  sustained,  would  be  to  extend  the  operation 
of  the  statute  beyond  the  purpose  for  which  it  was  made,  and  to  inflict  a  punish- 
ment where  none  is  prescribed.     *     *     * 

The  following  requests  to  charge  were  refused  by  the  court:  "1.  If  the  jury 
find  the  deceased  was  not  a  licensed  physician,  and  said  plaintiff  knew  that  fact, 
and  that  said  deceased  only  used,  at  her  request,  a  remedy  he  had  obtained  from 
another,  who  claimed  to  be  a  physician,  that  then  said  agreement  set  up  in  said 
petition  is  illegal  and  void,  and  the  plaintiff  cannot  recover  in  the  action.  2.  That 
before  the  plaintiff  can  recover  in  the  action  she  must  show  by  her  evidence  to 


422 

the  satisfaction  of  the  jury  that  said  employment  must  have  been  entered  into 
at  the  request  of  the  defendant,  as  is  averred  in  the  petition;  and  if  the  evidence 
shows  that  said  deceased  was  employed  and  retained  by  said  plaintiff  at  her 
request,  then  the  verdict  must  be  for  defendant."     *     *     * 

The  second  proposition  contained  in  the  above  series  of  requests  is  clearly  not 
the  law.  The  averment  that  the  retainer  of  the  defendant  was  at  his  special 
instance  and  request  is  technical,  and  is  sufficiently  proved  by  showing  that  the 
defendant  held  himself  out  as  a  practitioner  soliciting  public  patronage,  and  that 
the  employment  was  by  mutual  consent.  The  contract  of  employment  being 
entered  into,  it  matters  not,  under  this  averment,  that  it  was  induced  at  the 
special  instance  and  request  of  the  plaintiff.     *     *     * 

By  looking  into  the  record  we  find  that  all  the  law  stated  in  the  requests  to 
charge,  and  material  to  the  issue,  was  given  to  the  jury,  in  substance,  as  follows: 
"But  if  you  find  from  the  evidence  that  the  plaintiff,  at  the  time  of  the  employ- 
ment mentioned  in  the  petition,  knew  that  the  defendant  was  not  a  physician, 
that  she  knew  he  was  not  skilled  in  the  removal  of  tumors  and  cancers,  and  that 
he  did  not  know  the  nature,  appearance  and  character  of  such  diseases,  and  that 
she  did  not  rely  upon  his  skill  and  ability  as  a  physician,  or  as  a  person  skilled 
in  the  removal  and  cure  of  tumors  and  cancers,  but  upon  a  recipe  or  prescription 
which  the  defendant  claimed  would  remove  and  cure  tumors  and  cancers,  then, 
if  the  injury  complained  of  in  .the  petition  was  caused  or  produced  by  such  recipe 
or  prescription,  and  not  by  the  negligence  or  carelessness  of  the  defendant,  then 
the  plaintiff  cannot  recover."  This  charge,  upon  the  propositions  contained  in 
the  requests,  was  as  favorable  to  the  defendant  as  he  had  a  right  to  ask. 

The  testimony  shows  that  the  original  defendant  was  a  farmer  by  general 
occupation,  but  also  held  himself  out  as  a  cancer  doctor,  having  skill  and  experi- 
ence in  the  treatment  and  cure  of  cancers,  and  claiming  also  to  be  in  possession 
of  a  certain  recipe  or  prescription,  procured  from  one  Dr.  Garrett,  a  cancer  spe- 
cialist, that  would  remove  cancers  without  affecting  sound  tissue.  Such  was  the 
character  in  which  he  was  employed  by  the  plaintiff  below. 

Now,  it  is  claimed  by  plaintiff  in  error  that  such  proof  did  not  sustain  the 
averment  in  the  petition  that  he  was  employed  as  a  physician.  We  think  the 
gravamen  of  this  averment  is,  that  he  was  employed  as  one  professing  to  have 
skill  and  experience  in  the  treatment  and  cure  of  the  malady  with  which  the 
plaintiff  was  supposed  to  be  afflicted,  and  that  the  proof  not  only  sustains  the 
averment  when  properly  construed,  but  brings  the  party  employed  within  the 
rule  of  law  which  requires  the  exercise  of  such  skill  and  care  as  are  usually  pos- 
sessed and  employed  by  the  general  physician  in  the  treatment  of  such  mal- 
adies .  *     *     * 

CONFERRING  JUDICIAL  POWER  ON  BOARD  NOT  UNCONSTITUTIONAL 

France  v.  The  State,  57  0.  St.  1;  J+7  A7.  E.  1041 

1897 

This  is  an  appeal  from  a  conviction  under  the  medical  practice  act  of  1896. 
The  contention  of  the  plaintiff  is  that  the  act  is  repugnant  to  the  constitution 
of  the  state  and  to  the  Constitution  of  the  United  States.  The  first  contention 
of  the  plaintiff  is  that  the  act  is  unconstitutional  and  that  it  confers  judicial 
power  on  the  board,  which  power,  under  the  constitution  of  the  state,  belongs 
exclusively  to  the  courts.  The  Supreme  Court  concedes  that  the  authority  con- 
ferred by  the  act  includes  the  power  to  examine  into  and  decide  questions  requiring 
the  exercise  of  judgment  but  holds  that  it  does  not  follow  that  the  exercise  of  such 
authority  is  necessarily  the  exercise  of  judicial  power.  In  numerous  instances 
the  legislature  has  invested  various  boards,  bodies  and  officers  with  the  power  of 
ascertaining  facts  and  hearing  and  deciding  questions  when  necessary  or  expe- 
dient to  carry  into  execution  laws  for  the  public  good.  Such  powers  are  con- 
ferred on  boards  of  county  commissioners  and  township  trustees  and  other  boards 
requiring  the  exercise  of  the  power  to  hear  and  determine  important  questions 
sometimes  involving  large  interests.  The  validity  of  such  legislation  has  seldom 
been  challenged  and  has  been  uniformly  sustained  in  the  courts.  The  proposed 
statute  is  to  prevent  those  who  are  unfit  from  engaging  in  the  practice  of  med- 


423 

icine.  The  power  to  pass  upon  the  qualifications  required  must  necessarily  be 
committed  to  some  board  or  body  other  than  the  legislature  and  may  be  charac- 
terized as  administrative  rather  than  judicial. 

The  second  contention  of  the  plaintiff  is  that  the  statute  is  in  conflict  with 
the  provision  of  the  federal  constitution  which  prohibits  the  passsage  of  ex  post 
facto  laws.  The  court  holds  that  this  contention  is  not  sound.  Neither  the 
refusal  to  grant  a  certificate  nor  the  revocation  of  a  certificate  to  practice  med- 
icine has  any  retroactive  operation  nor  imposes  any  new  or  additional  punish- 
ment or  disability  for  a  past  act.  The  statute  has  prospective  operation  only 
and  does  not  purport  to  have  a  retroactive  effect.  The  plaintiff  also  contends 
that  the  statute  discriminates  against  physicians  and  surgeons  who  reside  out 
of  the  state,  but  as  it  is  not  contended  that  this  provision  invalidates  the  right 
of  personal  liberty  of  the  plaintiff,  the  court  holds  that  it  cannot  be  made  avail- 
able by  the  plaintiff  in  this  case  as  he  is  a  resident  of  the  state  and  is  not  com- 
petent to  assert  the  rights  of  non-residents.  The  court  further  holds  that  the 
exception  in  the  statute  in  favor  of  non-resident  physicians  does  not  render  the 
act  obnoxious  to  the  federal  constitution.  The  court  finds  nothing  unreasonable 
in  the  statute  in  question  and  affirms  the  judgment  of  the  lower  court. 


ESSENTIALS   OF    A   VALID   INDICTMENT 

Bale  v.  State,  58  Ohio  St.  676;  51  N.  E.  15.'f 

1898 

William  F.  Hale  was  convicted  in  the  court  of  common  pleas  of  unlawfully 
practicing  medicine.  The  judgment  was  affirmed  by  the  circuit  court,  and  defend- 
ant moves  for  leave  to  file  a  petition  in  error.     Motion  overruled. 

As  the  statute  on  which  this  prosecution  is  founded  is  of  recent  enactment, 
and  the  questions  presented  are  likely  to  arise  in  other  cases,  it  has  been  deemed 
proper  to  report  the  decision  upon  the  motion. 

1.  The  statute  provides  that  any  person  shall  be  regarded  as  practicing  med- 
icine or  surgery,  within  the  meaning  of  the  act,  "who  shall  append  the  letters 
M.D.  or  M.B.  to  his  name,  or  for  a  fee  prescribe,  direct  or  recommend  for  the 
use  of  any  person,  any  drug  or  medicine  or  other  agency  for  the  treatment,  cure 
or  relief  of  any  wound,  fracture  or  bodily  injury,  infirmity  or  disease."  The 
defendant  contends  that,  as  the  indictment,  in  the  same  count,  charges  that  the 
accused  prescribed  a  medicine  for  the  use  of  a  person  named,  and  appended  the 
letters  "M.D."  to  his  name,  subscribed  to  directions  written  on  the  package  for 
the  use  of  the  medicine,  two  distinct  offenses  are  charged,  rendering  the  indict- 
ment obnoxious  to  a  motion  to  quash  on  the  ground  of  duplicity.  The  court  sus- 
tains the  indictment.  The  defendant  also  claims  that  the  indictment  contains 
no  averment  that  he  was  not  a  graduate  in  medicine  or  surgery,  or  a  legal  prac- 
titioner under  the  laws  in  force  when  the  statute  was  passed,  and  that  such  an 
averment  is  necessary  to  the  statement  of  an  offense  under  the  statute,  because 
neither  those  who  were  legal  practitioners  at  the  time  of  its  passage,  nor  gradu- 
ates of  medical  colleges,  are  required  to  leave  certificates  obtained  by  them  from 
the  medical  board  with  the  probate  judge;  that  requirement  being  applicable,  it 
is  said,  to  those  only  who  receive  certificates  upon  examination  by  the  board. 
The  court  is  unable  to  adopt  that  construction  of  the  statute.  It  is  necessary, 
for  every  person,  first  to  comply  with  the  provisions  of  the  statute,  before  engag- 
ing in  the  practice  of  medicine  or  surgery;  the  only  limitation  being  that  persons 
engaged  in  the  practice  when  the  statute  was  enacted  are  authorized  to  continue 
therein  for  a  period  of  ninety  days  after  it  took  effect,  in  order  to  enable  them 
to  apply  for  and  obtain  the  certificate  required;  but,  if  they  would  thereafter 
engage  in  the  practice,  they  must  have  the  necessary  certificate.  The  statute  was 
designed  to  operate  uniformly  upon  all  members  of  the  medical  profession;  and 
its  purpose  was  to  provide  a  public  record,  open  at  all  times  to  public  inspection, 
containing  a  complete  list  of  all  authorized  resident  practitioners  in  the  county, 
from  which  it  can  be  readily  ascertained  who  are  legally  authorized  to  practice 
the  profession.  An  averment  in  an  indictment,  therefore,  which  charges  that  the 
defendant  engaged  in  the  practice  of  medicine  or  surgery  at  a  time  more  than 


424 

ninety  days  after  the  passage  of  the  statute,  without  having  first  left  with  the 
probate  judge  of  the  proper  county  a  certificate  granted  him  by  the  medical  board 
of  registration  and  examination,  is  a  sufficient  averment  of  his  failure  to  comply 
with  the  provisions  of  the  statute;  and  it  is  unnecessary  to  aver  either  that  he 
was  not  a  legal  practitioner  when  the  statute  was  passed,  or  not  a  graduate  of  a 
medical  college. 

It  is  further  contended  that  the  indictment  is  defective  because  it  contains 
no  averment  which  takes  the  defendant,  or  the  act  charged,  out  of  the  operation 
of  the  proviso  contained  in  the  section  defining  what  shall  be  regarded  as  prac- 
ticing medicine  or  surgery.  It  is  claimed  that  inasmuch  as  the  section  which 
makes  it  a  misdemeanor  to  practice  medicine  without  having  complied  with  the 
statute  refers  to  this  section  for  a  definition  of  what  shall  constitute  such  prac- 
tice, from  which  the  persons  and  cases  mentioned  in  the  proviso  are  excepted, 
the  exceptions  enter  into  the  description  of  the  offense;  so  that  the  indictment 
should,  by  negative  averment,  show  that  the  defendant  and  the  act  charged 
against  him  are  not  within  the  proviso.  The  statement  of  the  proposition  is  not 
without  plausibility,  but  in  the  opinion  of  the  court  it  cannot  be  maintained.  An 
indictment  which  charges  a  violation  of  the  general  prohibitory  provision  makes 
a  prima  facie  case ;  and  if  the  accused,  or  the  act  with  which  he  is  charged,  comes 
within  any  clause  of  the  proviso,  that  is  a  matter  which  lies  more  especially 
within  his  knowledge,  and  should  be  brought  forward  by  him  in  defense.  This 
indictment  was  therefore  not  demurrable  because  it  contained  no  averment  nega- 
tiving the  existence  of  the  facts  to  which  the  proviso  relates.     Motion  overruled. 


OSTEOPATHY   NOT   A   PRACTICE    OF   MEDICINE 

Statee  v.  Liffring,  61  Ohio  St.  39;  55  N.  E.  168;  46  L.  R.  A.  334;  76  Am.  St. 

Rep.  358 
1899 

Exceptions  from  court  of  common  pleas,  Lucas  county.  William  J.  Liffring 
was  indicted  for  practicing  medicine  without  a  certificate.  From  an  order  sus- 
taining a  demurrer  to  the  indictment,  the  state  brings  exceptions.  Exceptions 
overruled. 

Council  for  the  state  urge  that  when  Liffring  did  "prescribe,  direct,  and  rec- 
ommend for  the  use  of  one  Carey  B.  McClelland  a  certain  agency,  to-wit,  a  system 
of  rubbing  and  kneading  the  body  commonly  known  as  'osteopathy,'  for  the  treat- 
ment, cure,  and  relief  of  a  certain  bodily  infirmity  or  disease,"  as  charged  in  the 
indictment,  he  practiced  medicine,  as  defined  in  the  act  of  1896,  and  not  having 
procured  from  the  state  board  of  medical  registration  and  examination,  and  left 
with  the  probate  judge  of  the  county,  a  certificate  of  qualification  to  practice 
medicine  or  surgery,  as  required  by  the  act,  he  is  guilty  of  misdemeanor  and 
subject  to  fine  or  imprisonment  or  both.  The  practice  which  the  act  regulates 
is  defined  in  the  act:  "Any  person  shall  be  regarded  as  practicing  medicine  or 
surgery  within  the  meaning  of  this  act  who  shall  append  the  letters  'M.D.'  or 
'M.B.'  to  his  name  or  for  a  fee  prescribe,  direct  or  recommend  for  the  use  of  any 
person,  any  drug  or  medicine  or  other  agency  for  the  treatment,  cure  or  relief 
of  any  wound,  fracture  or  bodily  injury,  infirmity  or  disease."  It  does  not  seem 
to  be  supposed  that  the  indictment  charges  the  practice  of  surgery.  The  proposi- 
tion urged  by  the  state  is  that  the  "system  of  rubbing  and  kneading  the  body 
known  as  'osteopathy,'  "  which  the  indictment  does  charge,  is  an  agency,  within 
the  meaning  of  the  statute,  and  that  prescribing  and  directing  the  use  of  such 
agency  is  the  offense  defined  by  the  statute;  and  it  is  urged  that,  unless  we  give 
so  comprehensive  a  meaning  to  the  word  "agency,"  the  associated  words,  "med- 
icine" and  "drug,"  will  be  denied  all  meaning,  and  the  purpose  of  the  act  defeated. 
Our  knowledge  of  osteopathy  is  not  definite.  The  word  has  not  found  recognition 
in  the  dictionaries.  It  is,  however,  certain  that  its  use  exceeds  the  suggestions 
of  its  etymology.  The  rubbing  and  kneading  charged  in  the  indictment  are  con- 
sistent with  our  general  knowledge  that,  in  practice,  the  adherents  to  osteopathy 
wholly  reject  drugs  and  medicines.  The  application  of  the  theory  that  disease 
may  be  cured  by  the  manipulation  of  different  parts  of  the  body  would  not,  with 
close  regard  to  the  meanings  of  words,  be  called  an  agency.     But  assuming  a 


425 

meaning  of  the  word  which  might  justify  its  being  so  used,  if  that  would  be  con- 
sistent with  the  associated  words,  we  meet  the  suggestion  that  in  obedience  to 
the  maxim,  "Noscitur  a  sociis,"  the  meaning  of  the  word  "agency"  must  be  limited 
by  that  of  the  associated  words,  "drug"  and  "medicine."  The  cases  in  which  the 
meanings  of  words  have  been  thus  limited  are  so  numerous  that  the  labor  of  col- 
lecting them  appropriately  belongs  to  the  compilers  of  digests.  Certainly  this 
maxim  should  not  be  so  applied  as  to  defeat  the  object  of  legislation.  It  should 
always  serve  the  rule  that  the  object  of  construction  is  to  ascertain  intention. 
In  substance,  the  view  presented  in  support  of  the  exception  is  that  the  legislature 
intended  to  prohibit  the  administration  of  any  agency  and  the  recommendation 
of  any  mode  of  treating  diseases  or  patients,  except  by  the  holders  of  certificates 
from  the  board.  That  purpose  would  have  been  unmistakably  expressed  in  fewer 
words  than  are  employed  in  this  act.  With  the  assumed  meaning  of  the  word 
"'agency,"  it  would  have  been  precisely  expressed  by  this  act  if  the  words  "drug" 
and  "medicine"  had  been  omitted.  The  maxim  invoked  is  applicable  to  the  case, 
because  it  serves  the  universal  rule  that,  in  seeking  the  meaning  of  an  act,  all 
of  its  words  must  be  considered.  It  requires  the  conclusion  that  the  agency 
intended  by  the  legislature  is  to  be  of  the  general  character  of  a  drug  or  med- 
icine, and  to  be  applied  or  administered,  as  are  drugs  or  medicines,  with  a  view 
to  producing  effects  by  virtue  of  its  own  potency.  The  same  conclusion  will  fol- 
low a  more  general,  and  less  technical,  view  of  the  subject.  The  objection  which 
its  opponents  urge  against  osteopathy  is  that  it  recognizes  a  fragment  of  truth, 
and  assumes  that  it  is  the  universe  of  truth,  and  that,  by  rejecting  remedial 
agencies  generally  believed  to  be  effective  if  rightly  prescribed,  it  withholds  from 
those  who  resort  to  it  available  means  of  relief  and  cure.  It  is  not  charged  that 
it  is  otherwise  hurtful,  nor  that  its  administrations  are  attended  with  danger. 
The  obvious  purpose  of  the  act  under  consideration  is  to  secure  to  those  who 
believe  in  the  efficacy  of  medicines  the  ministrations  of  educated  men,  thus  pre- 
venting fraud  and  imposition,  and  to  protect  society  from  the  evils  which  result 
from  the  administration  of  potent  drugs  by  the  ignorant  and  unskilful.  The  pur- 
pose of  the  act  is  accurately  indicated  by  its  title  to  be  "to  regulate  the  practice 
of  medicine."  No  provision  of  the  act  indicates  an  intention  on  the  part  of  the 
legislature  that  those  who  do  not  propose  to  practice  medicine  shall  graduate 
from  a  college  of  medicine,  or  otherwise  become  learned  in  its  use.  Without  such 
knowledge  no  one  is  entitled  to  a  certificate  from  the  board  of  examination.  The 
result  of  the  view  urged  in  support  of  the  exception  is  that  by  this  act  the  gen- 
eral assembly  has  attempted  to  determine  a  question  of  science,  and  to  control 
the  personal  conduct  of  the  citizen  without  regard  to  his  opinions,  and  this  in  a 
matter  in  which  the  public  is  in  no  wise  concerned.  Such  legislation  would  be 
an  astonishing  denial  of  the  commonly  accepted  views  touching  the  right  to  per- 
sonal opinion  and  conduct  which  does  not  invade  the  rights  of  others.  From  the 
operation  of  constitutional  provisions  designed  to  establish  and  perpetuate  free- 
dom of  thought  and  action  in  matters  pertaining  to  religion,  it  results  that  in 
things  which  are  of  the  first  concern  we  are  imperatively  denied  the  guidance  of 
legislative  wisdom,  and  our  immortal  part  is  exposed  to  the  enduring  pain  which 
is  believed  to  follow  the  acceptance  of  religious  error.  In  the  absence  of  a  statute 
clearly  indicating  it,  the  general  assembly  will  not  be  presumed  to  have  intended 
the  consequences  involved  in  this  contention.     Exception  overruled. 


UNREASONABLE    REQUIREMENTS    OF    OSTEOPATHS    VOID 

State  v.  Gravett,  65  Ohio  St.  289;  62  W.  E.  825;  55  L.  R.  A.  791;  87  Am.  St. 

Rep.  605 
1901 

Henry  H.  Gravett  was  indicted  for  practicing  medicine  irregularly,  and  a 
demurrer  to  the  indictment  was  sustained,  and  the  state  brings  exceptions.  Excep- 
tions overruled. 

It  is  said  that  the  decision  of  the  court  below  is  justified  by  State  v.  Liffring, 
but  since  the  decision  in  that  case,  by  the  act  of  1900,  the  section  has  been 
amended,  and  a  more  comprehensive  definition  given  of  the  practice  regulated, 
so  that  one  is  now  regarded  as  practicing  medicine,  within  the  meaning  of  the 


426 

act,  "who  shall  prescribe,  or  who  shall  recommend  for  a  fee  for  like  use,  any 
drug  or  medicine,  appliance,  application,  operation  or  treatment,  of  whatever 
nature,  for  the  cure  or  relief  of  any  wound,  fracture,  or  bodily  injury,  infirmity 
or  disease."  The  amended  act  further  contains  a  proviso  to  prevent  its  applica- 
tion "to  any  osteopath  who  holds  a  diploma  from  a  legally  chartered  and  regu- 
larly conducted  school  of  osteopathy,  in  good  standing  as  such,  wherein  the  course 
of  instruction  requires  at  least  four  terms  of  five  months  each  in  four  separate 
years,  providing  that  such  osteopath  shall  pass  an  examination  satisfactory  to 
the  state  board  of  medical  registration  and  examination  on  the  following  sub- 
jects: Anatomy,  physiology,  chemistry,  and  physical  diagnosis.  It  seems  quite 
clear  that  in  its  present  form  the  statute  affords  no  proper  occasion  for  the  appli- 
cation of  the  maxim  of  interpretation  by  which  we  were  aided  in  State  v.  Lif- 
fring.  Careful  comparison  of  the  two  acts  with  respect  to  their  definitions  of 
the  practice  regulated  shows  that  while  in  the  former  the  legislature  intended 
to  prohibit  the  administration  of  drugs  by  persons  not  informed  as  to  their  effect 
or  potency,  by  the  latter  it  has  attempted  a  comprehensive  regulation  of  the 
practice  of  the  healing  art;  so  far,  at  least  as  to  require  the  preparatory  educa- 
tion of  those  who,  for  compensation,  practice  it  according  to  any  of  its  theories. 
The  comprehensive  language  of  the  statute,  and  the  purpose  which  it  clearly  indi- 
cates, require  the  conclusion  that  osteopathy  is  within  the  practice  now  regu- 
lated. 

In  support  of  the  decision  of  the  lower  court  it  is  further  contended  that,  if 
the  act  includes  the  practice  of  osteopathy,  it  is  to  that  extent  void  on  constitu- 
tional grounds.  It  is  urged  that  the  defendant  has  an  established  practice  as  an 
osteopathist,  and  that  the  statute  is  void  because  it  contains  no  provision  saving 
his  vested  right  therein.  This  objection  is  founded  on  the  inhibition  of  the  four- 
teenth amendment  to  the  constitution  of  the  United  States.  In  urging  this 
objection  it  is  correctly  assumed  that  there  is  a  property  interest  in  a  vocation 
or  means  of  livelihood,  but  the  distinction  between  the  right  to  establish  a  prac- 
tice and  the  right  to  pursue  a  practice  already  established  seems  to  be  inadmis- 
sible. By  what  process  of  reasoning  could  it  be  maintained  that  the  right  to 
enjoy  property  should  be  esteemed  more  sacred  than  the  right  to  make  contracts 
by  which  property  might  be  acquired?  The  provision  in  the  bill  of  rights  includes 
the  right  to  acquire  and  the  right  to  possess  within  the  same  protection.  Our 
constitutions  are  founded  upon  individualism,  and  they  make  prominent  the 
theory  that  to  the  individual  should  be  granted  all  the  rights  consistent  with 
public  safety;  and  our  development  is  chiefly  attributable  to  the  firm  establish- 
ment and  maintenance  of  those  rights  by  an  authorized  resort  to  the  courts  for 
their  protection  against  all  hostile  legislation  which  is  not  required  by  considera- 
tions of  the  public  health  or  safety.  In  the  absence  of  such  considerations  those 
rights  are  alike  immutable;  in  their  presence  they  must  alike  yield. 

It  is  further  urged  against  the  validity  of  the  statute  in  its  application  to 
osteopathists  that  to  their  admission  to  practice  it  prescribes  conditions  with 
which  compliance  is  impossible,  and  that  it  is  therefore  an  attempt,  by  indirect 
means,  to  prohibit  practice  according  to  their  theories.  The  act  requires  that 
the  applicant  for  a  certificate  "shall  be  examined  in  materia  medica  and  thera- 
peutics and  the  principles  and  practice  of  medicine  of  the  school  of  medicine  in 
which  he  desires  to  practice  by  a  member  or  members  of  the  board  representing 
such  school."  There  is  no  member  of  the  board  representing  the  school  of  oste- 
opathy. It  could  not  be  maintained,  and  we  do  not  understand  counsel  to  con- 
tend, that  the  board  of  medical  examination  must  be  so  numerous  a  body  that 
it  may  have  a  member  of  every  existing  or  possible  school.  The  insistence  is 
that,  however  few  or  numerous  the  members  of  the  board  may  be,  the  act  must 
contain  practicable  provisions  for  ascertaining  the  attainments  of  all  who  apply 
for  certificates,  they  being  in  other  respects  qualified.  Such  provisions,  it  is 
insisted,  are  not  contained  either  in  those  sections  which  relate  especially  to 
osteopathists.  The  question  arises  on  demurrer  to  the  indictment,  and  the  record 
does  not  inform  us  of  the  fact  that  there  is  no  school  of  osteopathy  whose  diploma 
would  admit  its  holder  to  an  examination.  However  well  known  it  may  be  to 
those  who  have  sought  information  concerning  it,  we  are  perhaps  without  such 
information  as  would  justify  us  in  regarding  it  as  a  fact  to  be  considered  in 
the  case.     But  a  sufficient  foundation  for  this  criticism  of  the  act  appears  in  its 


427 

provisions  discriminating  against  those  who  propose  to  practice  in  the  school 
to  which  the  defendant  belongs.  The  proviso  quoted  contains  a  list  of  subjects 
upon  which  those  desiring  to  practice  are  to  be  examined.  Having  in  view  the 
theories  of  the  osteopathists  as  they  are  commonly  understood,  it  seems  clear 
that  no  adverse  criticism  could  be  made  upon  the  discretion  exercised  in  the 
requirement  of  these  subjects  for  examination.  They  are  much  less  numerous 
and  extensive  than  those  prescribed  for  applicants  who  contemplate  a  regular 
practice,  and  an  appropriate  limitation  is  placed  upon  the  effect  of  certificates 
following  such  limited  examination.  But  one  who  desires  to  practice  in  the 
regular  school  is  admitted  to  a  more  extensive  examination  without  any  require- 
ments as  to  duration  of  study  in  the  college  whose  diploma  he  holds,  and  with- 
out any  requirement  in  that  regard  except  that  it  shall  be  a  "legally  chartered 
medical  institution  in  the  United  States  in  good  standing  at  the  time  of  issuing 
such  diploma,  as  defined  by  the  board."  Why  the  exaction  of  four  years  of  study 
should  be  made  of  those  only  who  are  to  take  a  shorter  examination,  and  receive 
a  certificate  of  limited  effect,  we  need  not  inquire.  It  is  quite  obvious  that  this 
additional  requirement  could  not  have  been  made  of  those  contemplating  the  prac- 
tice of  osteopathy  because  of  the  number  and  character  of  the  subjects  upon  which 
they  are  to  be  examined,  nor  of  the  effect  of  their  certificates,  nor  because  of 
any  consideration  affecting  the  public  health  or  safety  which  does  not  involve  a 
scientific  conclusion  adverse  to  the  efficacy  of  osteopathy.  A  conclusion  of  that 
character  cannot  be  drawn  by  a  body  to  which  legislative  power  alone  is  given, 
and  for  whose  members  there  is  no  prescribed  qualification  of  education,  knowl- 
edge, or  intelligence.  Authority  to  discriminate  against  osteopathy  would  imply 
authority  to  discriminate  against  any  other  school  of  medicine.  It  seems  clear 
from  the  reasons  involved,  and  from  the  discussion  of  the  subject,  that  this  dis- 
crimination against  those  who. occupy  the  position  of  the  defendant  is  unwar- 
rantable, and  that  compliance  with  it  cannot  be  required. 

The  question  lastly  considered  would  dispose  of  the  exception,  but  the  other 
questions  are  in  the  record.  It  seemed  proper  to  pass  upon  them  to  the  end  that 
the  general  assembly  may  not  meet  any  unnecessary  difficulty  in  the  exercise  of 
its  ample  power  to  protect  the  public  health  and  welfare  by  providing  that  only 
the  learned  may  pursue  a  learned  profession  whose  activities  so  closely  affect 
them.     Exceptions  overruled. 

"CHRISTIAN   SCIENCE"  IS  PRACTICE   OF  MEDICINE 

State  v.  Marlle,  72  Ohio  St.  21;  73  N.  E.  1063;  70  L.  R.  A.  835;  106  Am.  St. 

Rep.  570 
1905 

The  Supreme  Court  holds  that  the  giving  of  "Christian  Science"  treatment, 
for  a  fee,  for  the  cure  of  disease  is  practicing  medicine  within  the  meaning  of  the 
statute  regulating  such  practice  in  this  state.  The  statute  making  it  a  misde- 
meanor to  give  such  treatment  for  a  fee  is  not  an  interference  with  the  rights 
of  conscience  and  of  worship,  conserved  by  section  7  of  the  bill  of  rights,  and 
is  not  on  that  ground  unconstitutional.  Legislation  prohibiting  any  one  from 
treating  a  disease  for  a  fee,  excepting  such  persons  as  have  qualifications,  is  a 
valid  exercise  of  the  police  power  of  the  state,  and  is  constitutional.  The  act 
regulating  the  practice  of  medicine  in  this  state  exacts  reasonable  qualifications 
and  excludes  no  one  possessing  them,  and  it  is  not  void  as  discriminating  against 
Eddyites  in  that  it  prescribes  that  any  one  possessing  certain  qualifications  may 
practice  osteopathy  and  does  not  make  especial  provision  for  those  who  wish  to 
practice  Eddyism. 

The  court  says  that  the  right  to  practice  medicine  has  been  so  long  and  so 
universally  subject  to  state  regulation  that  it  might  almost  be  said  to  be  not  an 
absolute  right,  but  a  privilege  or  franchise.  Assuming,  however,  that  it  is  an 
absolute  right,  it  was  conceded  to  be  subject  to  such  reasonable  regulations  or 
conditions  as  the  state  in  the  exercise  of  the  police  power  may  prescribe.  The 
Ohio  statute  provides  that  "Any  person  shall  be  regarded  as  practicing  medicine 
or  surgery  or  midwifery  within  the  meaning  of  this  act,  who  shall  use  the  words 
or  letters  'Dr.,'  'Doctor,'  'Professor,'  'M.D.,'  'M.B.,'  or  any  other  title,  in  connec- 
tion with  his  name,  which  in  any  way  represents  him  as  engaged  in  the  practice 


428 

of  medicine  or  surgery  or  midwifery,  in  any  of  its  branches,  or,  who  shall  pre- 
scribe, or  who  shall  recommend  for  a  fee  for  like  use  any  drug  or  medicine,  appli- 
ance, application,  operation  or  treatment,  of  whatever  nature,  for  the  cure  or 
relief  of  any  wound,  fracture  or  bodily  injury,  infirmity  or  disease."  It  was  con- 
tended that  the  word  "treatment"  was  to  be  given  its  meaning  as  used  in  the 
practice  of  medicine  and  that  as  so  read  it  means  the  application  of  remedies  to 
the  curing  of  disease,  that  a  remedy  is  a  medicine  or  application  or  process;  that 
process  is  an  action  or  operation  and  that  prayer  for  the  recovery  of  the  sick  is 
neither.  Technically  this  may  be  correct  but  the  science  of  medicine  has  made 
some  advance  since  the  time  Macbeth  wished  to  throw  physic  to  the  dogs  because 
his  doctor  could  not  cure  a  mind  diseased  but  told  him  'Therein  the  patient  must 
minister  to  himself."  Nowadays  physicians  cure  imaginary  diseases  by  means 
that  would,  as  easily  as  Eddyism,  escape  the  above  definition.  What  Eddyism  is 
we  do  not  know.  The  practice  of  it  is  referred  to  as  treatment  by  its  followers. 
If  its  followers  call  it  treatment  they  ought  not  to  be  heard  to  say  it  is  not. 
The  statute  of  1896  had  been  held  in  this  court  not  to  comprise  the  practice  of 
osteopathy  and  by  a  lower  court  not  to  apply  to  Eddyism.  So  that  the  use  of 
the  words  "of  whatever  nature"  in  the  amendment  are  quite  significant  and  this 
court  has  no  doubt  the  legislative  intent  was  to  bring  within  this  definition 
every  person  who  for  a  fee  prescribed  or  recommended  a  cure  for  disease  even 
though  the  cure  was  to  come  not  from  himself  but,  through  his  intercedence,  from 
God.  The  next  contention  was  that  the  statute  interfered  with  the  defendant's 
right  to  worship  God  according  to  the  dictates  of  his  conscience.  The  Supreme 
Court  says  it  is  to  be  observed  that  the  statute  does  not  prohibit  the  prescribing 
or  recommending  the  treatment  except  for  a  fee  and  the  court  is  not  advised 
that  it  is  a  part  of  the  defendant's  religion  to  exact  a  fee  as  well  as  to  pray. 
But  if  the  inhibition  of  the  statute  tends  to  the  public  welfare  and  is  not  obnox- 
ious on  other  grounds  it  is  not  within  the  provision  of  section  7  of  the  bill  of 
rights  that  "All  men  have  a  natural  and  indefeasible  right  to  worship  Almighty 
God  according  to  the  dictates  of  their  own  conscience  .  .  .  nor  shall  any 
interference  with  the  rights  of  conscience  be  permitted." 

Taking  up  the  question  of  whether  the  act,  in  so  far  as  its  application  to 
Eddyism  is  concerned,  is  a  valid  exercise  of  the  police  power,  the  court  says  that 
the  practice  of  medicine  may  be  regulated  by  legislation  has  been  decided  in 
every  court  in  which  the  question  has  arisen.  But  it  is  said  that  the  offering 
of  prayer  to  God  for  the  recovery  of  the  sick  is  not  against  public  health  or  public 
morals  or  public  safety  or  public  welfare.  Admitted.  But  is  that  a  correct  state- 
ment of  the  case?  If  the  defendant  prayed  for  the  recovery  of  Hehl  that  was 
the  treatment  he  gave  him  for  the  cure  of  his  rheumatism  and  for  which  Hehl 
paid  him.  He  was  practicing  healing  or  curing  disease.  To  assume  that  legis- 
lation may  be  directed  only  against  the  administering  of  drusis  or  the  use  of  the 
knife  is  to  take  a  too  narrow  view.  The  subject  of  the  legislation  is  not  med- 
icine and  surgery.  It  is  the  public  health  or  the  practice  of  healing.  The  state 
might  make  it  an  offense,  as  has  been  done  in  New  York,  for  any  one  to  omit  to 
furnish  medical  attendance  to  those  dependent  on  him.  and  at  the  same  time 
leave  him  his  liberty  to  die  in  any  manner  he  may  choose.  But  this  is  not  all. 
While  the  state  may  not  deem  it  wise  to  go  to  the  extent  of  requiring  the  indi- 
vidual to  avail  himself  of  the  services  of  a  physician  yet  it  may  not  wish  to 
hasten  his  death  and  so  to  transfer  to  itself  the  burden  of  supporting  those 
dependent  on  him  by  making  it  possible  for  him  to  employ  an  empiric. 

Again,  where  there  is  an  infectious  or  contagious  disease  and  the  public  wel- 
fare may  be  vitally  affected  by  a  failure  promptly  to  recognize  it,  and  so  the 
state  is  interested  in  permitting  to  practice  the  art  of  healing  only  those  pos- 
sessing recognized  qualifications.  So  that,  regarding  disease  rather  than  the 
treatment  of  it  as  the  subject  of  the  legislation,  it  is  not  necessary  that  the 
statute  be  preventive  of  particular  practices,  but  it  may  make  the  right  to  under- 
take the  treatment  of  disease  dependent  upon  the  possession  of  reasonable  quali- 
fications. Then  it  was  contended  that  Eddyism  is  a  recognized  system  or  school 
of  healing,  and  that  the  statute  is  unconstitutional,  on  the  ground  that  it  dis- 
criminates against  Eddyism,  or  in  favor  of  certain  schools ,  of  medicine.  The 
court  says  that  if  it  is  correct  in  the  conclusion  that  disease  and  not  the  method 
of  its  treatment,   is  the  subject  of  the  legislation,  then  it   is   putting  the  cart 


429 

before  the  horse  to  say  that  every  school  of  healing  must  be  recognized.  That 
the  legislature,  in  its  wisdom,  might  prescribe  a  uniform  examination  the  court 
does  not  doubt,  and  that  it  may  recognize  one  school  without  recognizing  all,  is 
also  true,  if  the  recognition  be  in  the  exercise  of  proper  classification  and  for  the 
public  welfare,  and  not  with  a  view  to  create  a  monopoly  in  the  schools  recog- 
nized or  a  discrimination  against  other  schools.  'The  court  fails  to  find  anything 
in  the  present  act  that  discriminates  against  Eddyism.  It  does  not  provide  for 
a  special  examination  and  limited  certificate  for  the  Eddyite  practitioner,  but 
he  may  obtain  a  certificate  to  practice  medicine  upon  the  same  conditions  as  any 
other  person,  and  there  is  nothing  in  the  act  requiring  him  to  use  the  knowledge 
after  he  acquires  it.  To  admit  that  a  practitioner  may  determine  what  treat- 
ment he  will  give  for  the  cure  of  disease  and  that  the  state  may  examine  him 
only  respecting  such  treatment  would  be  to  defeat  the  purpose  of  the  statute 
and  to  make  effective  legislation  of  this  character  impossible.  If  the  present 
statute  is  too  comprehensive  the  remedy  is  with  the  legislature. 


CORPORATIONS   CANNOT    DO    PROFESSIONAL   BUSINESS 

State  v.  Laijlin,  73  Ohio  St.  90;  76  N.  E.  567 

1905 

The  Supreme  Court  holds  that  a  foreign  corporation,  the  sole  business  of 
which,  as  authorized  by  its  charter,  is  that  of  defending  physicians  and  surgeons 
against  civil  prosecution  for  malpractice,  which,  in  the  prosecution  and  conduct 
of  said  business,  issues  and  sells  to  members  of  the  medical  profession  a  contract 
whereby  it  undertakes  and  agrees  to  defend  the  holder  of  said  contract  against 
any  suit  for  malpractice  that  may  be  brought  against  him  during  the  term  therein 
specified,  but  does  not  assume,  or  agree  to  assume  or  pay,  any  judgment  that 
shall  be  rendered  against  him  in  such  suit,  is  not  engaged  in  the  business  of 
insurance,  nor  is  the  contract  so  issued  and  sold  an  insurance  contract.  But  a 
foreign  corporation,  created  for  the  purpose  of  engaging  in  and  carrying  on  such 
business,  is  not  entitled  to  have  or  receive  from  the  Secretary  of  State  of  the 
State  of  Ohio  a  certificate  authorizing  it  to  transact  such  business  in  that  state, 
for  the  reason  that  the  business  proposed  is  professional  business,  and  as  such  Is 
expressly  prohibited  to  corporations  by  section  3235  of  the  Revised  Statutes  of 
1903.  It  was  urged  that  the  company,  being  a  corporation,  an  impersonal  entity, 
could  not  and  did  not  itself  engage  in  the  practice  of  law  or  the  management 
and  conduct  of  defenses  in  suits  at  law,  but  in  what  it  did,  or  obligated  itself  to 
do,  it  undertook  only  "to  act  as  the  agent  of  the  contract  holder  in  retaining 
legal  counsel,  and  in  managing  and  maintaining  the  defense  of  the  suit."  But 
the  court  says  that  if  this  be  not  the  engaging  in  or  carrying  on  of  professional 
business,  then  it  would  be  difficult  to  conceive  how  professional  business  could 
be  engaged  in  or  carried  on  by  a  corporation.  The  conclusion  reached,  it  further 
says,  rendered  it  unnecessary  to  consider  the  question  suggested  that  the  contract 
issued  and  sold  by  the  company  was  a  contract,  the  making  of  which  was  against 
public  policy,  because  of  the  stipulations  and  provisions  therein  contained,  restrict- 
ing the  right  to  compromise. 

"GROSS    IMMORALITY"    NOT    AN   INDEFINITE    TERM 

Rose  v.  Baxter  et  al.,  81  Ohio  St.  522;  7  Nisi  Prisis    (N.  S.)   132 

[Affirmed   without   comment.] 

1909 

The  plaintiff  sought  to  enjoin  the  medical  board  from  hearing  an  application 
for  the  revocation  of  his  certificate  to  practice  medicine  on  grounds  of  "gross 
immorality,"  claiming  that  the  medical  practice  act  of  this  state  which  author- 
izes the  board  to  revoke  certificates  of  physicians  found  guilty  of  "gross  immor- 
ality," without  defining  what  constitutes  such  "gross  immorality,"  is  unconsti- 
tutional and  void  because  of  uncertainty  in  the  meaning  of  that  phrase,  and  that 


430 

the  act  of  the  plaintiff  described  in  the  application  for  revocation  of  the  certifi- 
cate as  constituting  "gross  immorality"  was  not  sufficient  under  the  law. 

The  application  charged  him  with  maintaining  offices  under  two  different  names, 
thereby  intending  to  perpetrate  a  gross  fraud  upon  the  public.  The  temporary 
injunction  granted  by  the  county  was  dissolved.  The  Supreme  Court  simply 
affirms  this  decision  without  report,  so  that  the  decision  of  the  county  court  may 
now  be  regarded  as  embodying  the  law  of  this  state  on  both  these  points.  The 
lower  court  said  that  the  most  serious  question  in  this  case  arises  from  the  con- 
sideration of  the  act  itself,  in  so  far  as  it  authorizes  the  board  to  revoke  after 
notice  and  hearing  a  certificate  where  the  physician  has  been  guilty  at  any  time 
of  felony  or  of  gross  immorality,  etc.  That  the  defendant  board  cannot  exercise 
what  has  sometimes  been  carelessly  termed  administrative  functions  seems  con- 
ceded. Legislative  power  has  been  vested  in  one  body  and  this  board  can  only 
carry  into  effect  that  which  the  legislature  itself  has  seen  fit  to  order  and  direct. 
If  the  expression  of  "gross  immorality"  is  so  vague,  so  uncertain,  so  broad  and 
comprehensive  that  it  gives  to  the  board  the  sole  power  to  determine  whether  or 
not  a  physician's  certificate  or  license  shall  be  revoked,  and  if  it  furnishes  no 
standard  as  to  qualification,  but  leaves  the  matter  solely  to  the  opinion  of  the 
board  as  it  may  be  constituted,  then  the  plaintiff's  contention  must  prevail  and 
that  part  of  the  act  which  provides  for  the  revocation  of  a  certificate  for  gross 
immorality  be  held  to  be  void. 

Plaintiff's  contention  has  been  further  upheld  in  a  number  of  states.  The 
courts  in  California,  Arkansas,  Kentucky  and  the  District  of  Columbia  have  all 
held  in  substance  that  the  use  of  a  general  term  which  vests  in  a  board  the  duty 
of  carrying  out  legislation,  while  it  is  a  proper  exercise  of  police  power,  yet  the 
acts  or  conduct  which  are  made  the  ground  of  forfeiture  must  be  declared  with 
certainty  and  definiteness,  and  hold,  following  this  general  statement  with  which 
all  courts  agree,  that  such  general  statements  as  "gross  immorality"  are  not 
sufficiently  certain  and  definite  but  leave  the  question  to  the  caprice  of  each 
individual  member  of  the  different  boards  from  time  to  time. 

On  the  other  hand,  a  majority  of  the  authorities  take  the  view  that  this  lan- 
guage is  not  so  indefinite  and  uncertain  as  to  fall  within  the  ban.  Certain 
expresssions  have  been  handed  down  through  the  law  for  centuries  and  have 
received  such  standard  of  interpretation  and  understanding  that  they  no  longer 
are  subject  to  the  charge  of  being  indefinite.  Thus,  with  reference  to  such  expres- 
sions as  the  ground  for  which  attorneys  may  be  disbarred,  "Unprofessional  con- 
duct, involving  moral  turpitude."  The  impossibility  of  anticipating  and  naming 
in  detail  each  and  every  specific  act  which  would  constitute  gross  immorality  or 
which  would  constitute  moral  turpitude  is  apparent. 

To  hold,  therefore,  that  gross  immorality  was  so  indefinite  that  the  board 
could  not  carry  out  the  legislative  act  and  intent  without  resorting  to  uncer- 
tainty and  caprice  would  probably  involve  a  number  of  other  well  settled  laws. 
Gross  immorality  is  a  term  which  has  been  used  and  has  received  adjudication 
at  the  hands  of  a  great  many  courts.  The  word  "gross"  does  not  mean  great, 
or  big,  or  excessive,  necessarily,  but  rather  such  a  wilful,  flagrant  and  shameful 
quality  with  respect  to  the  office  involved  as  renders  the  officer  unfit  to  hold  his 
license  and  authority  to  act.  Sometimes  the  expression  is  found,  under  the  law, 
"gross  misbehavior."  The  expression  "moral  turpitude"  is  closely  akin  to  the 
expression  at  bar  and  has  received  a  great  many  interpretations  but  always  sus- 
tained by  the  courts.  In  no  case  has  it  been  held  so  indefinite  as  to  preclude 
action  against  a  person  guilty  thereof.  As  to  the  charge  itself,  while  it  may  be 
conceded  that  a  physician  might  for  some  purposes  and  under  some  circumstances 
assume  two  names,  yet  there  can  be  but  one  rational  and  natural  meaning -given 
to  the  charges  made  in  this  case.  The  charges  are  made  against  the  plaintiff  as 
a  physician  in  his  quasi  public  character  as  such.  Secondly,  it  charges  that  he 
maintained  a  physician's  office  under  the  name  of  Doctor  Justin  and  at  the  same 
time  maintained  an  office  under  the  name  of  E.  J.  Rose,  intending  thereby  to 
perpetrate  a  fraud  upon  the  public.  This  charge  is  sufficiently  definite,  and 
charges,  as  a  matter  of  fact,  an  act  which,  with  reference  to  his  profession  and 
the  law  governing  the  same,  constitutes  gross  immorality. 


431 

REVOCATION  OF  LICENSE  PROCURED  ON  PRETENDED  DIPLOMA 

Gulley  v.  Territory,  91  Pac.  1031 

1907 

The  Supreme  Court  affirms  a  judgment  for  the  territory  in  this  case,  which 
was  brought  by  the  territory  to  cancel  a  license  to  practice  medicine  issued  on 
Feb.  11,  1902,  by  the  then  superintendent  of  public  health  to  the  said  Gulley,  on 
the  ground  that  the  license  was  procured  by  fraud  and  deception.  The 
court  holds  that  a  license  to  practice  medicine  procured  through  the  presentation 
of  a  pretended  diploma  from  a  fraudulent  medical  college,  without  an  examina- 
tion, will  be  revoked  and  canceled  in  a  proper  proceeding  in  the  district  court. 
Also,  that  an  action  to  cancel  a  license  on  the  ground  that  it  was  fraudulently 
obtained  is  an  equitable  proceeding,  and  the  licensee  is  not  entitled  to  a  jury 
trial  as  a  matter  of  right. 

The  so-called  diploma  in  this  case  was  one  purporting  to  have  been  issued 
by  the  Independent  and  Metropolitan  Medical  College,  located  in  Chicago,  Nov. 
4,  1896.  The  court  says  that  the  record  disclosed  a  flagrant  case  of  fraud,  decep- 
tion, and  misrepresentation  in  the  procurement  of  the  license.  And  this  was 
not  all.  The  applicant  knew,  at  the  time  he  made  his  application  and  verified 
the  same,  under  oath,  that  he  was  not  a  graduate  of  a  reputable  medical  col- 
lege, within  the  meaning  of  the  statute.  He  knew  that  the  pretended  diploma 
which  he  held  from  the  college  was  a  mere  sham  and  fraud,  well  calculated  to 
mislead  and  deceive  the  territorial  board  of  health.  He  knew  that  the  obtaining 
of  the  diploma  was  a  mere  pretense  and  fraud,  and  he  knew  that  the  Supreme 
Court  of  the  state  of  Illinois  had,  long  prior  to  his  application  for  license  to 
practice  in  this  territory,  forfeited  the  charter  of  this  pretended  medical  college 
and  declared  "that  the  corporation  is  a  mere  diploma  mill,  designed  wholly  for 
issuing  diplomas  to  practice  medicine,  for  a  consideration,  to  persons  wholly 
unqualified  for  such  practice."  In  this  case  of  Independent  Medical  College  vs. 
People  ex  rel  Akin,  Attorney  General,  182  111.,  274,  the  right  of  this  medical 
college  to  transact  business  in  the  state  of  Illinois  was  directly  involved,  and 
this  was  the  college  from  whence  the  defendant  represented  that  he  was  a 
graduate. 

It  was  argued  that  the  court  erred  in  admitting  in  evidence  the  records  of  the 
Illinois  courts  showing  the  actions  brought  by  the  state  of  Illinois  to  revoke 
and  cancel  the  charters  of  the  Illinois  Health  Institute,  and  the  Independent 
Medical  College,  its  successor,  and  the  record  of  the  conviction  of  Armstrong, 
the  head  of  these  institutions,  for  the  fraudulent  use  of  the  mails  in  operating 
the  same.  Clearly,  this  evidence  was  competent  and  material  for  the  purpose 
of  showing  that  these  pretended  colleges  were  fraudulent  institutions,  and  that 
the  pretended   diploma  was  procured   from   a   fraudulent  institution. 

Did  the  court  err  in  refusing  the  defendant  a  jury  trial?  This  question  must 
be  answered  in  the  negative.  This  was  not  one  of  the  actions  in  which  the 
party  is  entitled  to  a  jury  trial  as  a  matter  of  right.  Trial  by  jury  is  guaran- 
teed only  in  those  classes  of  cases  where  that  right  existed  at  common  law. 
The  case  at  bar  fell  under  the  well-recognized  rules  of  equity  jurisprudence  to 
cancel  a  license  on  the  ground  of  fraud,  and  hence  the  defendant  was  not  entitled 
to  a  jury  trial  as  a  matter  of  right. 


THE  MEDICAL  PRACTICE  LAW  IN  OKLAHOMA  AFTER  THE  TERRITORY 

BECAME  A  STATE 

State  v.  Harmon,  3  Okla.  C.  R.  68;  104  Pac.  310 

1909 

The  Criminal  Court  oT  Appeals  says,  that  the  territorial  laws  relating  to  the 
practice  of  medicine  were  not  extended  and  did  not  remain  in  force  in  the 
state  of  Oklahoma  by  reason  of  section  39,  article  5,  of  the  Constitution,  which 
provides  that:  "The  legislature  shall  create  a  board  of  health,  board  of  dentistry, 
board  of  pharmacy,  and  pure  food  commission,  and  prescribe  the  duties  of  each. 


432 

All  physicians,  dentists  and  pharmacists  now  legally  registered  and  practicing 
in  Oklahoma  and  Indian  Territory  shall  be  eligible  to  registration  in  the  state 
of  Oklahoma  without  examination  or  cost."  This  provision  of  the  Constitution 
was  made  effective  by  chapter  70a,  article  1,  page  701a,  of  the  session  laws  ot 
1907-'08,  the  same  being  entitled:  "An  act  to  define  and  regulate  the  practice  of 
medicine,  to  create  a  board  of  medical  examiners  for  the  examination  and 
licensing  of  physicians  and  surgeons,  and  to  prescribe  their  qualifications;  to 
provide  for  their  proper  regulation,  and  to  provide  for  the  revocation  of  their 
license;  to  require  itinerant  vendors  to  procure  a  county  license,  and  to  fix 
suitable  penalties  for  the  violation  of  this  act,  and  repealing  laws  and  parts  of 
laws  in  conflict  herewith."  This  law  was  approved  June  12,  1908,  and  became 
effective  on  the  24th  day  of  August,   1908. 


NECESSARY  TO  SHOW  ABUSE  OF  DISCRETION  BEFORE  COURTS  WILL 
REVIEW  RULING  OF  BOARD 

Barmore  v.  State  Board,  21  Ore.  301;  28  Pac.  8 

1891 

The  plaintiff  asked  for  a  writ  of  mandamus  against  the  board  to  compel  it  to 
issue  him  a  certificate  to  practice  medicine  in  the  state,  claiming  that  he  was 
a  graduate  of  the  Medical  Department  of  the  University  of  Cincinnati  and  that 
he  had  complied  with  all  the  requirements  of  the  statute.  The  board  in  its  reply 
claimed  that  the  Medical  Department  of  the  University  of  Cincinnati  was  at  that 
time  not  in  good  standing  in  the  state  of  Ohio  or  elsewhere.  The  board  further 
states  that  the  plaintiff  submitted  himself  for  an  examination  and  that  on  said 
examination  his  average  was  only  15  per  cent,  whereas  the  rule  of  the  board 
required  a  minimum  standing  of  75  per  cent.  The  litigation  is  based  on  the  act 
of  1889,  amended  in  1891,  copied  substantially  from  the  laws  of  Illinois  and 
Missouri.  The  court  holds  that  by  adopting  a  statute  in  such  case  the  con- 
struction received  by  the  courts  of  the  state  from  which  the  statute  was  taken 
is  adopted  with  it  and  that  the  decisions  of  such  courts  are  authoritative.  After 
going  over  the  decision  of  the  Illinois  Supreme  Court  as  to  what  constitutes  a 
reputable  college  and  reviewing  the  decisions  of  the  Illinois  and  Missouri  courts, 
the  supreme  court  says  that  to  render  such  a  law  effective,  the  power  to  grant 
certificates  must  be  lodged  in  some  recognized  body  of  men  with  supervisory 
power  vested  in  the  courts  to  review  their  acts  if  the  discretion  given  them  by 
law  shall  be  abused,  but  before  the  courts  will  interfere  it  must  be  made  to 
appear  that  there  has  been  an  abuse  of  discretion.  It  is  not  enough  that  there 
may  be  men  in  the  same  profession  who  would  have  decided  the  other  way.  No 
abuse  of  discretion  on  the  part  of  the  board  has  been  shown.  The  decision  of 
the  lower  court  is  reversed  and  the  writ  dismissed. 


PASSAGE  OF  NEW  PRACTICE  ACT  REPEALS  ALL  PROVISIONS  OF 

FORMER  LAW 

In  re  Ferdon,  57  Pac.  376 
1899 

J.  M.  Ferdon  was  committed  to  the  custody  of  the  sheriff,  on  the  charge  of 
itinerantly  vending  medicine  without  a  license,  contrary  to  statute,  and  he  applied 
for  a  writ  of  habeas  corpus.  From  a  judgment  dismissing  the  writ  and  remand- 
ing petitioner,  he  appeals.     Reversed. 

The  petitioner  was  held  to  answer  for  a  violation  of  the  act  of  1889,  regulating 
the  practice  of  medicine  and  surgery,  and  in  default  of  bail  was  committed  to 
the  custody  of  the  sheriff.  He  thereupon  applied  to  the  circuit  court  for  his 
discharge  under  a  writ  of  habeas  corpus,  on  the  ground  that  the  section  of  the 
act  under  which  he  was  committed  is  unconstitutional  and  void,  or,  if  not,  that 
it  was  repealed  by  the  subsequent  act  of  the  legislature  regulating  the  practice 


433 

of  medicine  and  surgery  in  the  state.     The  writ  having  been  dismissed,  and  the 
petitioner  remanded  to  the  custody  of  the  defendant,  he  appeals. 

The  act  of  1889  is  entitled  "An  act  to  regulate  the  practice  of  medicine  and 
surgery  in  the  state  of  Oregon."  It  provides  for  the  appointment  of  a  board  of 
examiners,  and  for  the  punishment  of  any  person  practicing  medicine  or  surgery 
without  a  licence.  Section  11,  as  amended  in  1891,  and  under  which  the  peti- 
tioner was  arrested  and  committed,  provides  that  itinerant  vendors  shall  pay 
a  license  of  one  hundred  dollars  per  month.  The  contention  of  the  petitioner  is 
that  this  section  is  unconstitutional  and  void,  because  not  within  the  subject  of 
the  act  as  expressed  in  the  title.  The  court  says  that  it  is  not  easy  to  perceive 
what  connection  the  licensing  or  taxing  of  itinerant  vendors  of  drugs  or  nostrums 
has  with  the  question  of  regulating  the  practice  of  medicine  and  surgery.  If 
it  be  conceded  that  an  itinerant  vendor  of  drugs  and  medicines,  who  publicly  pro- 
fesses to  cure  and  treat  diseases  therewith,  is  practicing  medicine  or  surgery, 
and  that  the  section  is  a  mere  regulation  of  such  practice,  it  was  repealed  by 
the  subsequent  act  of  1895,  which  was  evidently  intended  to,  and  does,  revise  the 
whole  subjectmatter  of  the  old  law,  and  prescribes  the  conditions  on  which  the 
practice  of  medicine  and  surgery  shall  be  permitted.  The  act  of  1895  is  entitled 
"An  act  to  regulate  the  practice  of  medicine  and  surgery  in  the  state  of  Oregon, 
and  to  license  physicians  and  surgeons,  to  punish  all  persons  violating  this  act 
and  to  repeal  all  laws  in  conflict  therewith,  and  declaring  an  emergency."  Like 
the  act  of  18.89,  it  provides  for  the  appointment  of  a  board  of  medical  examiners, 
and  defines  their  duties  and  powers,  declares  who  shall  be  regarded  as  prac- 
ticing medicine  or  surgery,  and  prescribes  in  great  detail  the  qualifications  and 
conditions  upon  which  persons  shall  be  permitted  to  do  so,  and  the  punishment  of 
any  person  assuming  to  practice  without  a  license.  In  short,  it  is  complete  within 
itself,  and,  under  the  well-settled  rule  of  statutory  construction,  that  where  the 
legislature,  by  a  new  statute,  evidently  intends  to,  and  does,  revise  the  whole 
subjectmatter  of  an  old  one,  operates  as  a  repeal  of  the  former  act  upon  the  sub- 
ject. It  follows,  therefore,  that,  assuming  the  section  of  the  statute  under  which 
the  petitioner  was  arrested  to  have  been  constitutional  and  valid  at  the  time  of 
its  enactment,  it  had  been  repealed  at  the  time  of  the  petitioner's  arrest.  The 
judgment  of  the  court  below  is  therefore  reversed,  and  the  cause  remanded,  with 
direction  to  discharge  the  petitioner. 


ALTERATION   OF  UNAUTHORIZED   TEMPORARY   LICENSE 

Volp  v.   Saylor   et   al.    State  Board   of   Medical   Examiners,   ^2   Ore.   5^6;   11 

Pac.  980 

1903 

In  1891,  the  Oregon  State  Board  of  Medical  Examiners  issued  what  was 
intended  to  be  a  temporary  license  only,  certifying  that  Heinrich  Volp,  having 
passed  a  satisfactory  examination  in  medicine  and  surgery,  was  authorized  to 
practice  same  until  a  certain  date,  or,  in  other  words,  for  six  months.  The  secre- 
tary testified  that  the  board  had  adopted  the  practice  of  giving  temporary  permits 
so  that  the  applicant,  if  unsuccessful,  could  still  earn  a  livelihood,  with  the  under- 
standing that  he  again  submit  himself  for  an  examination  at  the  expiration  of 
the  period  fixed  in  the  certificate.  On  the  trial,  however,  it  was  stipulated  that 
the  board  had  no  power  to  issue  a  temporaiy  permit  or  license.  But  because  the 
board  of  examiners  adopted  an  irregular  and  unauthorized  practice,  and  issued  a 
permit  or  license,  using  the  form  of  a  regular  certificate,  but  limiting  its  dura- 
tion, the  Supreme  Court  of  Oregon  does  not  consider  that  it  followed,  as  was 
argued,  that  such  board  issued  and  delivered  an  ordinary  or  regular  license, 
unlimited  in  its  scope,  and  therefore  valid.  It  says  that  to  construe  such  an 
act  as  the  board's  into  absolute  regularity,  and  the  permit  of  six  months'  dura- 
tion into  a  license  regular  in  form  and  unrestricted  as  to  the  time  of  the  opera- 
tion, would  be  to  contort  an  irregular  and  void  proceeding  into  one  of  due  regu- 
larity and  perfect  legal  efficacy.  The  erasure  of  that  portion  of  the  certificate 
intended  as  a  limitation  could  not,  by  any  rule  of  ethics  or  practice,  either  in  law 
or  morals,  operate  to  admit  the  holder  as  a  regular  practitioner  of  medicine  and 


434 

surgery.  The  fact  that  it  was  certified  that  he  had  passed  a  satisfactory  exami- 
nation could  not  aid  him,  as  the  certificate  hy  its  very  terms  limited  the  time 
the  board  intended  he  should  exercise  the  privilege  accorded,  and  the  suggestion 
that  the  board  was  precluded  from  showing  that  the  examination  was  unsatis- 
factory was  without  relevancy  in  the  argument.  He  may  have  been  entitled  to 
a  full  license  on  such  a  showing,  but  he  did  not  get  it,  and  his  act  of  changing 
the  certificate  received  could  not  operate  as  an  act  of  the  board  granting  that 
which  he  applied  for.  Nor  does  the  court  accede  to  the  contention  that  his 
license  could  be  revoked  except  for  unprofessional  or  dishonorable  conduct,  and 
that  his  act  in  changing  the  certificate,  and  thus  procuring  his  name  to  be  entered 
in  the  register,  did  not  come  within  the  meaning  of  such  terms  as  declared  by  the 
act  of  1895,  which  provided  that  all  persons  who  had  been  regularly  licensed 
under  theretofore  existing  laws  of  the  state,  and  had  complied  with  the  provisions 
thereof,  should  be  taken  and  considered  as  licensed  physicians  under  this  act. 
It  says  that  this  proceeded  on  the  assumption  that  he  was  regularly  licensed, 
and  that  he  was  then  entitled  to  practice  by  reason  thereof.  But  he  had  no  such 
license  to  revoke.  The  record  he  caused  to  be  made  gave  him  none,  but  it  falsely 
showed  that  one  had  been  regularly  issued  to  him,  and  it  was  to  get  rid  of  this 
record  that  the  board  took  action.  What  the  board  really  did  was  to  vacate  a 
void  record.  Furthermore,  the  court  holds  that,  where  the  record  is  admittedly 
fraudulent,  as  it  was  here,  a  court  of  justice  will  not  intercede  to.  reinstate  it, 
even  though  it  was  vacated  without  notice  to  the  party  affected  by  the  order. 
If  the  court  could  see  that  the  party  had  been  deprived  of  any  substantial  right 
without  an  opportunity  to  be  heard,  the  case  would  be  different;  but  he  was 
insisting  on  a  privilege  vouchsafed  to  him  by  a  license  or  record  which  he  con- 
ceded to  have  been  obtained  through  his  own  wilful  and  fraudulent  act,  and  the 
court  would  not  thus  intercede  to  permit  him  to  enjoy  the  fruits  of  his  own 
wrong. 

MEDICAL  PRACTICE  ACT  CONSTITUTIONAL 

In  Re  Campbell,  197  Pa.  581;  Jfl  Atl.  860 

1901 

The  Supreme  Court  holds  that  the  act  of  1893  is  a  valid  and  constitutional 
exercise  of  the  police  power  of  the  state  upon  a  subject  plainly  within  that  power, 
and  urgently  in  need  of  control  by  it.  The  title  of  sixty-two  words  it  is  certain 
is  not  open  to  criticism  for  brevity  or  vagueness.  But  it  says  that  the  purpose 
of  the  act  is  indicated  in  the  phrase  "to  regulate  the  practice  of  medicine  and 
surgery."  This  gives  notice  to  any  one  desiring  to  enter  the  practice  that  its 
provisions  do  or  may  concern  him.  Nothing  more  is  required.  Nor  does  the 
court  consider  that  the  act  is  in  contravention  of  the  provisions  of  the  state  con- 
stitution vesting  the  appointing  power  in  the  governor,  because,  it  holds,  there 
is  nothing  in  the  constitution  which  prohibits  the  legislature,  in  creating  an  office, 
from  fixing  the  qualifications  of  the  incumbent  and  thereby  limiting  the  choice  of 
the  governor  in  the  appointment  to  the  class  of  persons  so  qualified,  which  is  all 
this  act  does  in  regard  to  the  offices  which  it  provides  for.  Neither  does  it  think 
that  the  act  violates  the  constitutional  prohibition  against  any  local  or  special 
law  "granting  to  any  corporation,  association,  or  individual  any  special  or  exclu- 
sive privilege  or  immunity."  It  says  the  act  is  not  local  or  special.  It  embraces 
the  whole  state,  and  applies  to  all  persons  of  every  school  or  system  of  medicine 
desiring  to  enter  on  the  practice.  The  designation  of  the  three  medical  societies 
from  whose  members  the  board  of  examiners  are  to  be  selected  is  not  the  grant 
of  any  special  or  exclusive  privilege  to  those  societies,  but  a  convenient  method 
of  securing  a  competent  and  qualified  class  from  whom  the  examiners  may  be 
selected.  But,  even  if  it  should  be  regarded  as  a  special  privilege  to  those  socie- 
ties, it  would  not  be  unconstitutional.  The  board  of  examiners  are  state  officers, 
charged  with  the  administration  of  the  state's  police  power  on  the  subject  of 
admission  to  the  practice  of  medicine.     The  constitutional  provision  quoted  does 


435 

not  apply  to  such  officers.  The  state  may  choose  its  own  agents  in  its  own  way 
to  carry  out  its  commands  in  regard  to  the  taxing  of  police  or  other  general 
powers.  The  act,  the  court  further  holds,  by  clear  implication  provides  for  regis- 
tration by  entry  of  record  in  a  county  medical  register  kept  by  the  prothonotary. 
This  register,  while  not  a  judicial  record,  is  a  public  record  of  matters  of  public- 
interest  and  concern,  directed  to  be  kept  open  and  accessible  for  the  information 
of  the  public,  put  from  motives  of  public  policy  under  the  sanction  and  control 
of  the  court,  the  duty  of  so  keeping  it  being  imposed  on  the  prothonotary  as  an 
officer  of  the  court,  in  the  performance  of  which  duty  he  is  necessarily  subject 
to  the  orders  and  control  of  the  court.  So,  if  a  licensed  physician  applying  for 
registration  should  be  refused  without  good  reason,  the  court,  on  mandamus  or 
by  summary  order,  would  compel  its  officer  to  perform  the  duty  laid  upon  him 
by  the  statute;  and  if  he  has,  through  misinformation,  made  an  erroneous  entry 
not  warranted  by  law,  the  court  has  power  to  compel  its  amendment  or  cancella- 
tion. It  is  immaterial  that  he  who  petitions  to  have  the  record  corrected  should 
have  no  personal  interest  in  the  matter.  It  is  also  irrelevant  to  a  proceeding  to 
have  a  medical  register  corrected  by  striking  off  a  name  that  on  a  trial  for  prac- 
ticing medicine  in  violation  of  the  statute  the  person  whose  right  to  registration 
is  questioned  was  acquitted,  it  being  charged  that  the  entry  was  procured  by 
falsehood  and  fraud. 


MEDICAL  PRACTICE  ACT  AND  PROCEDURE  SUSTAINED 

Commomvealth  v.  Clymer,  217  Pa.  302;  66  Atl.  560 
1907 

The  Supreme  Court  affirms,  on  the  opinion  of  the  Superior  Court,  a  convic- 
tion of  practicing  medicine  without  a  license.  The  opinion  referred  to  holds  that 
the  act  of  May  18,  1893,  is  not  unconstitutional  on  the  ground  that  the  subject 
of  legislation  is  not  clearly  expressed  in  the  title.  The  particular  objection  was 
that  the  title  gives  no  notice  of  the  provision,  contained  in  the  fourteenth  section, 
making  a  violation  of  any  of  the  provisions  of  the  act,  especially  those  relating 
to  practicing  medicine  or  surgery  without  license  and  registration,  a  misdemeanor 
punishable  by  fine.  But  it  is  answered  that,  inasmuch  as  the  subject  of  legisla- 
tion, as  expressed  in  the  title,  is  the  examination  and  licensing  of  practitioners 
of  medicine  and  surgery,  and  the  further  regulation  of  the  practice  of  medicine 
and  surgery,  any  one  would  naturally  suppose,  from  reading  the  title,  that  the 
act  not  only  provided  for  the  licensing  of  such  practitioners,  but  declared  the 
consequences  of  practicing  without  complying  with  its  provisions. 

The  admission  of  the  testimony  of  a  statistical  clerk,  who  assisted  in  keeping 
the  records  of  the  medical  council  and  the  state  board  of  medical  examiners,  that 
he  had  examined  them,  and  could  not  find  the  name  of  R.  S.  Clymer  therein,  was 
not  prejudicial  error,  even  though  this  mode  of  proving  the  contents  of  the  record 
was  open  to  objection.  According  to  the  doctrine  of  Commonwealth  v.  Wenzel, 
24  Pa.  Superior  Ct.,  467,  and  in  view  of  the  state  of  the  record  produced  from 
the  prothonotary's  office,  it  was  not  incumbent  on  the  commonwealth  to  prove 
that  the  defendant  had  no  license. 

The  record  produced  from  the  office  of  the  prothonotary,  taken  in  connection 
with  the  uncontradicted  testimony  of  the  deputy,  showed  that  none  of  the  papers 
exhibited  by  the  defendant  for  the  purpose  of  registration  .was  a  license  issued 
by  the  medical  council  of  Pennsylvania,  and  no  such  license  was  produced  on 
the  trial,  or  was  proved,  and  its  non-production  accounted  for.  Moreover,  in  the 
affidavit  filed  by  the  defendant  with  these  papers,  the  clauses  of  the  blank  relative 
to  the  exhibition  of  a  license  issued  by  the  medical  council,  and  to  compliance 
with  the  provisions  of  the  act  of  1893,  were  all  erased,  thus  showing  that  the 
defendant  was  careful  not  to  assert  that  he  had  any  such  license,  or  that  he  had 
complied  with  the  provisions  of  the  act.  In  view  of  these  facts  the  judge  was 
justified  in  expressing  to  the  jury  his  opinion  as  to  what  the  verdict  should  be. 


436 

ITINERANT  PRACTITIONER  DEFINED 

Evans  v.  State  Board  of  Health,  19  B.  I.  312;  33  Atl.  878 

1896 

The  appellant  is  a  domiciled  resident  of  Boston,  Mass.,  and  a  practicing  physi- 
cian making  a  specialty  of  the  treatment  of  catarrh.  His  main  or  regular  office  is 
in  Boston,  and  for  ten  years  past,  except  when  absent  from  the  country  or  pre- 
vented by  illness,  he  has  visited  Providence  in  the  practice  of  his  specialty  on 
stated  days  each  month.  He  has  had  no  office  in  Providence  except  the  rooms  he 
has  taken  in  the  hotels  at  which  he  has  stopped.  He  has  notified  his  patients 
of  his  visits  to  Providence  by  advertisements  in  the  Providence  Journal,  and  has 
met  them  in  his  rooms  at  the  hotels  at  the  times  mentioned  in  the  advertisements. 
He  has  also  during  this  ten  years,  for  greater  or  less  periods,  been  in  the  habit 
of  visiting,  in  the  practice  of  his  specialty,  Worcester,  Springfield,  New  Bedford 
and  Lowell,  Mass.,  in  the  same  manner  as  he  has  visited  Providence. 

On  these  facts  the  State  Board  of  Health  decided  that  he  was  to  be  regarded 
as  an  itinerant  doctor  within  the  meaning  of  the  laws  of  1895,  which  provides 
that  "Nothing  in  this  chapter  shall  be  so  construed  as  to  authorize  any  itinerant 
doctor  to  register  or  to  practice  medicine  in  any  part  of  this  state."  The  court 
thinks  that  this  decision  was  correct,  and  affirms  it  accordingly. 


DIPLOMA  OF  COLLEGE  INDIRECTLY  INDORSED  SUFFICIENT 
Boucher  v.  State  Board  of  Health,  19  R.  I.  366;  33  Atl.  878 

1896 

The  appellant  is  a  graduate  of  the  Medical  Department  of  the  Laval  Univer- 
sity, a  legally  chartered  medical  college  in  Montreal,  Canada,  but  his  application 
for  a  certificate  to  practice  medicine  was  refused  by  the  respondents  on  the  ground 
that  Laval  University  had  not  been  endorsed  by  them  as  a  reputable  and  legally 
chartered  medical  college.  It  appears,  however,  that  if  he  had  presented  with  his 
diploma  a  license  to  practice  medicine  in  Canada  from  the  College  of  Physicians 
and  Surgeons,  a  board  similar  to  the  respondents,  they  would  have  granted  him 
a  certificate  to  practice.  The  evidence  shows  that  the  license  of  the  College  of 
Physicians  and  Surgeons  is  granted  as  a  matter  of  course  to  those  holding 
diplomas  from  the  Laval  University  who,  like  the  applicant,  had  been  found  by 
the  Governors  of  the  College  of  Physicians  and  Surgeons  qualified  to  pursue  the 
study  of  medicine  and  had  been  registered  in  the  books  of  the  college  as  having 
commenced  the  study,  on  the  payment  of  a  prescribed  fee,  and  that  it  merely  con- 
fers authority  on  the  licensee  to  practice  in  Canada.  We  understand  also,  from 
the  testimony,  that  in  several  instances  the  Board  has  granted  certificates  to 
practice  to  graduates  of  Laval  University  who,  having  practiced  medicine  in 
Canada  prior  to  coming  here,  had  the  license  of  the  College  of  Physicians  and 
Surgeons.  If  this  be  so,  the  court  thinks  that,  inasmuch  as  the  license  of  the 
College  of  Physicians  and  Surgeons  is  granted  to  holders  of  diplomas  of  Laval 
University,  of  the  class  mentioned,  without  examination,  merely  on  the  payment 
of  a  prescribed  fee,  the  granting  of  certificates  by  the  respondents  to  other  grad- 
uates of  Laval  University,  qualified  as  above  stated,  was  in  effect  an  endorsement 
of  that  University  by  them  as  a  legally  chartered  medical  college,  to  the  extent 
mentioned,  and  that  they  therefore  erred  in  refusing  a  certificate  to  the  appellant 
merely  because,  not  wishing  to  practice  in  Canada,  he  did  not  pay  the  fee  and 
obtain  the  license  from  the  College  of  Physicians  and  Surgeons. 

Decision  of  the  State  Board  of  Health  overruled. 


"SUCCESSFUL  PRACTICE"  DEFINED 

Paquin  v.  State  Board  of  Health,  19  K.  I.  365;  33  Atl.  870 

1896 

The  appellant  claims  to  be  entitled  to  a  certificate  authorizing  him  to  practice 
medicine,  in  accordance  with  the  law  of  1895,  on  the  ground  that  he  was  reputably 
and  honorably  engaged  in  the  practice  of  medicine  prior  to  Jan.  1,  1892,  in  this 


437 

state,  within  the  meaning  of  the  second  clause  of  the  section.  The  court  thinks 
that  this  clause  was  intended  to  apply  to  physicians  who,  not  possessing  a  diploma 
from  a  reputable  and  legally  chartered  medical  college,  endorsed  as  such  by  the 
State  Board  of  Health,  as  required  by  the  first  clause  of  the  section,  had  been 
in  practice  a  sufficient  length  of  time  prior  to  Jan.  1,  1892,  and  with  sufficient 
success  to  have  acquired  an  honorable  reputation  in  the  community  as  practi- 
tioners. 

The  appellant  has  not  presented  satisfactory  evidence  that  he  possessed  this 
qualification.  The  testimony  is  that  for  several  years  prior  to  1889  he  was 
engaged  in  the  dry  goods  and  boot  and  shoe  business  in  Warren;  that  in  1889 
he  took  up  by  himself  the  study  of  medicine,  and  later  in  that  year  began  to  prac- 
tice, chiefly,  if  not  wholly,  among  the  French  residents  of  the  town;  that  from 
the  latter  part  of  1889  he  gave  his  attention  exclusively  to  the  practice  of  med- 
icine, leaving  the  dry  goods  and  boot  and  shoe  business  to  be  managed  by  clerks, 
and  that  he  continued  his  practice  up  to  Jan.  1,  1892,  some  of  his  patients  being 
satisfied  with  his  services  and  some  not.  There  is  no  evidence  that  on  Jan.  1.  1892, 
he  had  come  to  be  regarded  by  the  community  in  which  he  practiced  as  a  skillful 
and  successful  practitioner,  and  therefore  had  acquired  the  honorable  reputation 
as  a  physician  necessary  to  qualify  him  to  practice  contemplated  by  the  statute. 

The  decision  of  the  State  Board  of  Health  denying  a  certificate  to  the  appellant 
is  affirmed. 


ILLEGAL   PRACTICE   MUST   BE   FOR    REWARD   OR    COMPENSATION 

State  v.  Pirlot,  20  R.  I.  273;  38  Atl.  656 

1897 

The  indictment  charges  that  the  defendant  did  unlawfully  practice  medicine, 
for  reward  and  compensation,  without  first  having  obtained  a  certificate  from  the 
State  Board  of  Health,  and  without  posessing  any  of  the  qualifications  set  forth 
in  Gen.  Laws  R.  I.  cap  165.  At  the  conclusion  of  the  charge  to  the  jury,  in  the 
trial  in  the  Common  Pleas  Division,  the  defendant  requested  the  justice  presiding 
to  charge  that  "If  the  jury  find  that  the  defendant  received  no  reward  or  com- 
pensation for  his  services,  they  must  find  for  the  defendant."  The  court  refused 
the  request,  and  instructed  the  jury  to  the  contrary. 

Gen.  Laws  R.  I.  cap.  165,  section  2,  makes  it  unlawful  for  any  person  to  prac- 
tice medicine  or  surgery  who  has  not  exhibited  and  registered,  in  the  city  or  town 
clerk's  office  of  the  city  or  town  in  which  he  resides,  authority  for  so  practicing, 
as  prescribed  in  section  3  of  this  chapter,  to  wit,  a  certificate  from  the  State 
Board  of  Health.  But  while  section  2  makes  it  unlawful  to  practice  medicine  or 
surgery  without  first  exhibiting  'and  having  registered  a  certificate  from  the 
State  Board  of  Health,  as  provided  in  section  8,  which  provides  the  penalty,  it 
also  limits  the  fine  to  the  practice  of  medicine  or  surgery  for  reward  or  com- 
pensation. We  think,  therefore,  that  the  court  erred  in  refusing  the  defendant's 
request. 

Defendant's  petition  for  a  new  trial  granted,  and  case  remitted  to  the  Com- 
mon Pleas  Division. 


OFFENSE  MUST  BE  CHARGED  SPECIFICALLY 
State  v.  Julius  A.  Pirlot,  State  v.  Alexander  A.  Walter,  19  R.  I.  695;  36  Atl.  115 

1897 

These  indictments  charge  merely  that  the  defendants  "did  unlawfully  practice 
medicine  and  surgery,  for  reward  and  compensation,  against  the  form  of  the 
statutes"  etc.,  without  setting  forth  in  what  the  unlawfulness  consisted.  The 
rules  of  criminal  pleading  require  that  the  offense  shall  be  charged  specifically, 
first,  in  order  that  the  accused  may  know  precisely  what  he  is  to  defend  against, 
and  secondly,  that  the  record  of  his  acquittal  or  conviction  may  be  a  bar  to  a  sub- 
sequent prosecution  for  the  same  offense. 

Demurrers  sustained,  and  case  remitted  to  the  Common  Pleas  division  with 
direction  to  quash. 


438 

CHRISTIAN  SCIENCE  NOT  THE  PRACTICE  OF  MEDICINE 

State  v.  Anthony,  20  B.  I.  644;  40  Atl.  1135 

1898 

The  defendant,  who  is  a  Christian  Scientist,  was  adjudged  probably  guilty  of 
the  unlawful  practice  of  medicine,  in  violation  of  cap.  165,  Gen.  Laws  R.  I.  The 
defendant  claims  that  said  cap.  165,  so  far  as  it  relates  to  the  acts  complained  of, 
is  in  violation  of  Art.  1,  section  3,  of  the  Constitution  of  Rhode  Island.  The 
evidence  upon  which  he  was  adjudged  guilty  showed  a  practice  of  Christian 
Science,  and,  substantially,  was  like  that  set  forth  in  the  opinion  of  the  court  in 
State  1.  Mylod.  The  testimony  fails  to  show  any  violation  of  said  cap.  165.  Said 
chapter  does  not  relate  to  the  acts  of  the  defendant,  and,  therefore,  he  cannot,  in 
this  proceeding,  attack  its  constitutionality. 


METAPHYSICAL   HEALING  NOT   THE   PRACTICE   OF   MEDICINE 

State  v.  Taft,  20  B.  I.  645;  1,0  Atl.  758 
1898 

The  defendant  was  adjudged  probably  guilty  of  a  violation  of  cap.  165,  Gen. 
Laws  R.  I.,  "of  the  practice  of  medicine."  The  defendant,  who  is  a  believer  in 
metaphysical  healing,  claims  that  said  chapter,  as  far  as  it  relates  to  the  acts 
complained  of,  is  in  violation  of  Art.  1,  section  3,  Const.  R.  I. 

Although  the  testimony  differs  somewhat  in  character  from  that  in  State  V. 
Mylod,  and  State  V.  Anthony,  ante  644,  it  fails  to  show  that  the  defendant,  in  the 
statutory  sense,  was  guilty  of  an  unlawful  practice  of  medicine.  This  being  so, 
the  constitutional  question  is  not  before  the  court. 


PRACTICE  OF  MEDICINE  NOT  INCLUSIVE  OF  CHRISTIAN  SCIENCE 

State  v.  Mylod,  20  B.  I.  632;  40  Atl.  153;  41  L.  B.  A.  428 

1898 

The  defendant  was  adjudged  probably  guilty,  on  complaint  of  the  secretary 
of  the  State  Board  of  Health.  Complaint  alleges  that  the  defendant  "did  then  and 
there  practice  medicine  and  surgery  for  reward  and  compensation,  without  lawful 
license,  certificate,  and  authority,  and  not  being  then  and  there  duly  registered 
according  to  law." 

The  defendant,  upon  arraignment,  pleaded  not  guilty,  and  subsequently,  and 
before  judgment,  raised  a  question  of  the  constitutionality  of  the  law. 

For  the  State,  Everett  Hall  testified,  substantially,  that  he  called  upon  the 
defendant  at  his  residence  and  asked  to  be  cured  of  malaria;  that  the  defendant 
said  he  was  Doctor  Mylod;  that  the  defendant  sat  looking  at  the  floor,  with  his 
eyes  shaded,  as  if  engaged  in  silent  prayer,  for  about  ten  minutes,  and  then  said, 
"I  guess  you'll  feel  better,"  that  defendant  gave  him  a  book  entitled  "A  Defence 
of  Christian  Science,"  that  he  gave  defendant  one  dollar;  that  defendant  did  not 
recommend  nor  administer  any  drug  or  medicine,  nor  take  his  pulse  or  tem- 
perature, nor  do  any  of  the  things  usually  done  by  physicians. 

Clarence  Vaughn,  in  behalf  of  the  State,  testified  that  he  called  upon  the 
defendant  at  .his  residence  on  two  occasions  and  requested  to  be  cured  of  grippe; 
that  he  gave  defendant  one  dollar  each  visit;  that  defendant  said  he  was  Doctor 
Mylod;  that  defendant  gave  him  a  card  stating  the  defendant's  office  hours  and 
describing  defendant  as  a  Christian  Scientist,  but  not  in  any  way  referring  to 
defendant  as  a  physician;  that  defendant  did  not  take  his  pulse  or  temperature, 
nor  do  any  of  the  other  things  that  physicians  do  in  treating  disease,  but  seemed 
to  be  sitting  in  silent  prayer;  that  defendant  gave  him  a  book  entitled  "An  His- 
torical Sketch  of  Metaphysical  Healing,"  that  defendant  told  him  to  look,  not  on 
the  dark  side  of  things,  but  on  the  bright  side,  and  to  think  of  God,  and  it  would 
do  him  good,  since  thought  governs  all  things. 


439 

Dr.  Gardner  T.  Svvarts,  secretary  of  the  State  Board  of  Health,  testified  that 
the  defendant  is  not  a  registered  physician;  that  said  defendant  does  not  have 
authority  to  practice  medicine  in  Rhode  Island,  and  that  physicians  often  cure 
disease  without  the  use  of  drugs  or  medicine. 

For  the  defense,  the  charter  of  the  Providence  Church  of  Christ,  Scientist,  was 
introduced  in  evidence,  and  the  defendant  testified,  substantially,  that  he  is  the 
president  and  first  reader  or  pastor  of  said  church;  that  said  church  has  been 
organized  and  has  held  regular  religious  services  for  seven  years;  that  said  church 
belongs  to  the  sect  known  as  Christian  Scientists,  in  whose  belief  God  and  Jesus 
Christ  and  the  Bible  hold  a  supreme  place;  that  the  principal  distinguishing  dif- 
ference between  Christian  Scientists  and  other  sects  consists  in  the  belief  of  the 
former  regarding  disease,  which  they  believe  can  be  reduced  to  a  minimum 
through  the  power  of  prayer;  that  the  public  religious  services  of  said  church 
consist  of  silent  prayer,  music,  reading  of  the  scriptures  and  of  extracts  from 
"Science  and  Health"  by  Mary  G.  Baker  Eddy;  that  he,  beyond  a  greater  realiza- 
tion of  truth  which  his  longer  study  of  Christian  Science  may  have  given  him, 
professed  to  have  no  greater  power  over  illness  than  that  possessed  by  any  member 
of  his  church;  that  he  did  not  tell  the  witnesses  Hall  and  Vaughn  that  he  could 
cure  them,  nor  did  he  call  himself  a  doctor;  that  he  did  not  attempt  to  cure  them 
by  means  of  any  power  of  his  own;  that  he  assured  them  that  it  is  God  alone  who 
heals,  acting  through  the  human  mind;  that  all  he  did  was  to  engage  in  silent 
prayer  for  them,  and  to  endeavor  to  turn  their  thoughts  to  God  and  toward  the 
attainment  of  physical  perfection;  that  the  efforts  made  for  them  were  precisely 
the  same  in  character  as  those  which  he  makes  for  his  congregation  at  the  public 
services  of  his  church;  that  he  does  not  practice  medicine  nor  attempt  to  cure 
disease;  that  he  has  no  knowledge  of  medicine  and  surgery;  that,  as  a  Christian 
Scientist,  he  never  recommended  to  any  one  a  course  of  physical  treatment;  that 
he  has  only  the  method  of  prayer,  and  effort  to  encourage  hopefulness  for  all  who 
come  to  him  in  public  or  private,  and  whatever  disease  they  imagine  they  have; 
and  that  his  ministrations  often  can  be,  and  are,  rendered  as  effectively  in  the 
absence  as  in  the  presence  of  the  beneficiary. 

Other  witnesses  were  called,  but  there  was  no  material  variance  in  the  tes- 
timony, except  that  the  witnesses  Hall  and  Vaughn  testified  that  the  defendant 
said  that  he  was  Doctor  Mylod,  which  testimony  was  contradicted  by  the 
defendant. 

The  constitutional  question  raised  by  the  defendant  is  that,  under  Section  3, 
Art.  1,  Const.  R.  I.,  which  secures  to  him  religious  freedom,  he  has  a  right  to 
perform  the  acts  shown  by  the  testimony  to  have  been  performed,  and  that,  there- 
fore, said  cap.  165,  Gen.  Laws  R.  I.,  under  which  said  complaint  was  made,  is 
unconstitutional  if,  in  so  far  as,  it  provides  a  penalty  for  the  performance  of  said 
acts. 

This  question,  properly,  cannot  be  considered  by  the  court  unless  said  cap.  165 
is  sufficiently  broad  to  include  within  its  prohibitive  provisions  the  acts  of  the 
defendant;  for  the  defendant  cannot  question  the  constitutionality  of  said  chapter 
unless  his  rights  would  be  affected  by  its  enforcement. 

There  is  no  testimony  tending  to  show  that  the  defendant  practiced  or 
attempted  to  practice  surgery,  or  that  he  made  any  diagnosis  or  examination  to 
ascertain  whether  the  witnesses  Hall  and  Vaughn  were  suffering  from  disease,  or 
that  he  administered  or  prescribed  any  drug,  medicine,  or  remedy,  or  that  he 
claimed  any  knowledge  of  disease  or  the  proper  remedies  therefor. 

On  the  testimony,  the  only  claim  that  can  be  made  by  the  State  is  that  upon 
a  card  handed  to  one  of  the  witnesses  appeared  the  name  and  office  hours  of  the 
defendant;  that  the  defendant  said  he  was  Doctor  Mylod;  that  he  offered  silent 
prayer  for  the  witnesses  Hall  and  Vaughn,  who  claimed  to  be  suffering  from  dis- 
ease; that  he  gave  such  witnesses  each  a  book  in  which,  presumably,  the  principles 
of  Christian  science  were  taught,  explained,  and  defended;  that  he  told  the  witness 
Vaughn,  substantially,  to  look  on  the  bright  side  of  things  and  think  of  God,  and 
it  would  do  him  good;  and  that  he  accepted  compensation  for  his  services. 

Did  these  acts  of  the  defendant  constitute  the  practice  of  medicine,  in  viola- 
tion of  cap.  165,  Gen.  Laws  R.  L? 

It  is  the  duty  of  the  court  to  give  effect  to  the  intention  of  the  law-making 
power  as  embodied  in  the  statutes.     The  legislature  is  presumed  to  mean  what  it 


440 

has  plainly  expressed,  and  when  it  has  so  expressed  its  meaning,  construction  is 
excluded.  It  is  only  when  the  meaning  of  the  statute  is  obscure,  or  the  words 
employed  are  of  doubtful  meaning,  that,  in  order  to  give  effect  to  the  legislative 
intention,  the  duty  of  construction  arises.  In  the  construction  of  penal  statutes, 
a  well-established  rule  is  that  words  and  phrases  must  be  taken  in  their  ordinary 
acceptation  and  popular  meaning,  unless  a  contrary  intent  appears.  While  the 
words  of  such  statutes  are  not  to  be  restricted  in  meaning  within  the  narrowest 
limits,  neither  are  they  to  be  extended  beyond  their  common  interpretation;  and 
if  there  is  a  reasonable  doubt  as  to  whether  the  acts  done  are  within  the  meaning 
of  the  statute,  the  party  accused  of  its  violation  is  entitled  to  the  benefit  of  the 
doubt. 

It  follows,  therefore,  that  the  acts  complained  of  are  excluded  from  the  opera- 
tion of  said  cap.  165  unless  the  words  "practice  of  medicine"  taken  in  their 
ordinary  or  popular  meaning,  includes  them,  or  unless  it  appears  from  said 
chapter  that  the  legislative  intent  was  to  give  to  said  words  a  meaning  broader 
and  more  inclusive  than  the  popular  one. 

Medicine,  in  the  popular  sense,  is  a  remedial  substance.  The  practice  of  med- 
icine as  ordinarily  or  popularly  understood,  has  relation  to  the  art  of  preventing, 
curing,  or  alleviating  disease  or  pain.  It  rests  largely  in  the  sciences  of  anatomy, 
physiology,  and  hygiene;  it  requires  a  knowledge  of  disease,  its  origin,  its  ana- 
tomical and  physiological  features,  and  its  causative  relations;  and,  further,  it 
requires  a  knowledge  of  drugs,  their  preparation  and  action.  Popularly  it  con- 
sists in  the  discovery  of  the  cause  and  nature  of  disease,  and  the  administration 
of  remedies  or  the  prescribing  of  treatment  therefor. 

Prayer  for  those  suffering  from  disease,  or  words  of  encouragement,  or  the 
teaching  that  disease  will  disappear  and  physical  perfection  be  attained  as  a  result 
of  prayer,  or  that  humanity  will  be  brought  into  harmony  with  God  by  right 
thinking  and  a  fixed  determination  to  look  on  the  bright  side  of  life,  does  not 
constitute  the  practice  of  medicine  in  the  popular  sense. 

The  State,  however,  contends  that  said  cap.  165,  taken  as  a  whole,  indicates  a 
legislative  intention  to  give  to  the  words  "practice  of  medicine"  a  meaning  broader 
than  the  popular  one.  In  support  of  this  contention  it  calls  attention  to  the  pro- 
vision contained  in  section  8  of  said  chapter,  that  "To  open  an  office  for  such 
purpose"  that  is,  for  the  practice  of  medicine  or  surgery,  "or  to  announce  to  the 
public  in  any  other  way  a  readiness  to  practice  medicine  or  surgery  in  this  State, 
shall  be  to  engage  in  the  practice  of  medicine  within  the  meaning  of  this  chapter." 
In  view  of  this  provision,  the  State  contends  that  to  practice  medicine  it  is  not 
necessary  to  use  internal  or  other  remedies,  nor  to  make  diagnoses,  nor  to  have 
a  patient,  but  that  the  opening  of  an  office  for  the  practice  of  medicine  or  the 
announcement  of  a  readiness  to  engage  in  such  practice,  constitutes  a  practice  of 
medicine;  and,  therefore,  as  the  statute  applies  not  only  to  those  who  actually 
practice,  but  also  to  those  who  announce  in  any  way  a  readiness  to  practice,  the 
State  contends  that  the  legislature  intended  to  give  a  broader  than  the  generally 
accepted  meaning  to  the  words  "practice  of  medicine." 

We  are  unable  to  agree  with  this  contention.  Without  passing  upon  the  pro- 
vision referred  to,  and  whatever  its  significance,  it  certainly  cannot  be  construed 
to  broaden,  in  a  general  sense,  the  meaning  of  the  words  "practice  of  medicine." 
The  most  that  can  be  claimed  for  it  is  that  it  operates  to  broaden  the  offense 
created  by  said  cap.  165,  so  that  the  attempt  or  the  announcement  of  a  readiness 
to  practice  medicine  becomes  equivalent  to  the  actual  practice. 

The  State  further  calls  attention,  in  support  of  its  contention,  to  section  6  of 
said  chapter,  which  provides  that  "nothing  in  this  chapter  shall  be  so  construed 
as  to  discriminate  against  any  particular  school  or  system  of  medicine"  and  it 
argues  that,  as  the  statutory  prohibition  relates  to  the  practice  of  medicine  "in 
any  of  its  branches,"  and  that  as  certain  diseases,  such  as  insanity  and  nervous 
prostration,  are  treated  by  the  so-called  "regular  school"  without  the  use  of 
drugs,  and  that  as  all  schools  recognize  the  study  of  mental  conditions  as  affect- 
ing bodily  health  as  forming  a  distinct  branch  of  medicine,  the  legislative  inten- 
tion to  give  to  the  words  "practice  of  medicine"  a  construction  sufficiently  broad 
to  include  the  practice  of  Christian  science  is  clearly  manifested. 

The  words  of  the  provision  against  discrimination,  like  the  words  "practice  of 
medicine,"  must  be  taken  in  their  ordinary  sense  and  meaning.     It  is  a  matter 


441 

of  common  knowledge  that  among  rnedicul  men  there  are  defined  differences 
regarding  the  treatment  of  disease.  These  differences  have  resulted  in  different 
schools  or  systems  of  medicine.  A  recognition  of  the  existence  of  such  differences, 
however,  does  not  broaden  the  meaning  of  the  words  "practice  of  medicine"  to 
include  the  practice  of  that  which,  in  the  popular  sense,  is  not  a  practice  of 
medicine.  Neither  does  the  statutory  reference  to  the  practice  of  medicine  "in 
any  of  its  branches"  affect  the  meaning  of  the  words  in  question.  While  it  is 
true  that  the  study  and  treatment  of  mental  disease  constitute  one  of  the  depart- 
ments or  branches  of  medicine,  in  which  the  influence  of  the  mind  over  the  body 
is  recognized,  yet  mere  words  of  encouragement,  prayer  for  divine  assistance, 
or  the  teaching  of  Christian  science  as  testified,  in  tin-  opinion  of  the  court,  does 
not  constitute  the  practice  of  medicine  in  either  of  its  branches,  in  the  statutory 
or  popular  sense. 

To  give  to  the  words  "practice  of  medicine"  the  construction  claimed  for  them 
by  the  State,  in  the  opinion  of  the  court  would  lead  to  unintended  results.  The 
testimony  shows  that  Christian  Scientists  are  a  recognized  sect  or  school.  They 
hold  common  beliefs,  accept  the  same  teachings,  recognize  as  true  the  same 
theories  and  principles.  If  the  practice  of  Christian  science  is  the  practice  of 
medicine,  Christian  science  is  a  school  or  system  of  medicine,  and  is  entitled  to 
recognition  by  the  State  Board  of  Health  to  the  same  extent  as  other  schools  or 
systems  of  medicine.  Under  said  cap.  165  it  cannot  be  discriminated  against, 
and  its  members  are  entitled  to  certificates  to  practice  medicine  provided  they 
possess  the  statutory  qualifications.  The  statute,  in  conferring  upon  the  State 
Board  of  Health  authority  to  pass  upon  the  qualifications  of  applicants  for  such 
certificates,  does  not  confer  upon  said  board  arbitrary  power.  The  board  cannot 
determine  which  school  or  system  of  medicine,  in  its  theories  and  practices,  is 
right;  it  can  only  determine  whether  the  applicant  possesses  the  statutory  qualifi- 
cation to  practice  in  accordance  with  the  recognized  theories  of  a  particular 
school  or  system.  It  would  be  absurd  to  hold  that  under  said  cap.  165,  which 
provides  against  discrimination,  the  requirements  necessary  to  entitle  an  applicant 
to  a  certificate  were  such  that  the  members  of  a  particular  school  or  system  could 
not  comply  with  them,  thus  adopting  a  construction  which  would  operate  not  as 
a  discrimination  only,  but  as  a  prohibition.  On  the  other  hand,  to  hold  that  a 
person  who  does  not  know  anything  about  disease,  or  about  the  method  of  ascer- 
taining the  presence  or  the  nature  of  disease,  or  about  the  nature,  preparation,  or 
use  of  drugs  or  remedies,  and  who  never  administers  them,  may  obtain  a  certifi- 
cate to  practice  medicine,  is  to  hold  that  the  operation  of  the  statute  is  to  defeat 
the  beneficial  purposes  for  which  it  was  enacted. 

The  assumption  of  the  title  of  "doctor",  if  defendant  assumed  such  title,  was 
not  unlawful.  Cap.  165  does  not,  in  terms,  prohibit  the  use  of  the  word  "doctor" 
by  any  person,  whatever  his  business  or  profession  may  be.  Its  use  is  entirely 
immaterial  in  any  case,  unless  under  such  conditions  or  circumstances,  or  in  such 
connection,  that  it  may  serve  as  an  announcement  or  indication  of  a  readiness  to 
engage  in  the  practice  of  medicine  or  surgery. 

The  object  of  the  statute  in  question  is  to  secure  the  safety  and  protect  the 
health  of  the  public.  It  is  based  upon  the  assumption  that  to  allow  incompetent 
persons  to  determine  the  nature  of  disease,  and  to  prescribe  remedies  therefor, 
would  result  in  injury  and  loss  of  life.  To  protect  the  public,  not  from  theories, 
but  from  the  acts  of  incompetent  persons,  the  legislature  has  prescribed  the 
qualifications  of  those  who  may  be  entitled  to  perform  the  important  duties  of 
medical  practitioners.  The  statute  is  not  for  the  purpose  of  compelling  persons 
suffering  from  disease  to  resort  to  remedies,  but  is  designed  to  secure  to  those 
desiring  remedies  competent  physicians  to  prepare  and  administer  them. 

The  opinion  of  the  court  is  that  the  words  "practice  of  medicine"  as  used  in 
Gen.  Laws  R.  I.  cap.  165,  must  be  construed  to  relate  to  the  practice  of  medicine 
as  ordinarily  and  popularly  understood,  and  that  the  acts  of  the  defendant  do 
not  constitute  a  violation  of  said  chapter.  The  court,  therefore,  cannot  properly 
pass  upon  the  constitutional  question  raised,  for  the  right  of  the  defendant  would 
not  be  affected  by  any  conclusion  to  which  the  court  might  arrive. 


442 

LICENSED  PHYSICIAN  MAY  PRACTICE  DENTISTRY 

State  v.  Beck,  21  R.  I.  288;  h3  Atl.  366 

1899 

The  indictment  charges,  in  substance,  that  the  defendant  did  unlawfully  prac- 
tice dentistry  in  Newport  on  the  first  day  of  August,  1898,  without  first  having 
obtained  a  certificate  from  the  Board  of  Registration  in  Dentistry,  and  without 
first  having  caused  his  name  and  place  of  business  to  be  registered  with  said 
board. 

The  defendant  has  filed  a  special  plea  in  bar  to  said  indictment,  in  which  he 
sets  up,  in  brief,  that  at  the  time  aforesaid  he  held  a  certificate  in  due  form 
from  the  State  Board  of  Health;  that  he  was  qualified  to  practice  medicine  and 
surgery  by  reason  of  the  possession  by  him  of  a  diploma  from  a  reputable  and 
legally  chartered  medical  college,  endorsed  by  said  Board  of  Health,  by  virtue  of 
which  he  was  qualified  to  practice  medicine  and  surgery  in  all  its  branches  upon 
all  parts  of  the  human  body,  including  the  teeth. 

To  this  plea,  the  attorney-general  has  demurred,  on  the  ground  that  a  certifi- 
cate from  the  State  Board  of  Health  authorizing  the  defendant  to  practice  med- 
icine and  surgery,  as  provided  in  Gen.  Laws  R.  I.  cap.,  165,  does  not  authorize 
him  to  practice  dentistry  without  having  first  obtained  a  certificate  from  the 
Board  of  Registration  in  Dentistry  and  otherwise  qualifying  himself  to  practice 
dentistry  in  accordance  with  the  provisions  of  Gen.  Laws  R.  I.  cap.  155,  as 
amended  by  Pub.  Laws  R.  I.  cap.  470. 

The  question  presented  for  our  decision  under  the  pleadings,  therefore,  is 
whether  the  defendant  had  the  right,  by  virtue  of  his  authority  to  practice  med- 
icine and  surgery,  to  practice  dentistry.  The  answer  to  this  question  depends 
upon  the  construction  to  be  given  to  the  statute  regulating  the  practice  of  den- 
tistry, taken  in  connection  with  that  regulating  the  practice  of  medicine;  as, 
independent  of  these  statutes,  there  can  be  no  doubt  of  the  right  of  the  defendant 
to  practice  dentistry. 

After  reviewing  the  dental  laws  passed  by  the  Legislature,  the  court  says  that 
the  evident  purpose  of  the  General  Assembly,  in  the  passage  of  the  act  relating  to 
the  practice  of  dentistry,  was  to  protect  the  public  from  being  imposed,  upon  by 
persons  who,  while  holding  themselves  out  as  competent  to  extract,  clean,  or 
repair  teeth,  or  replace  them  by  artificial  ones,  yet  from  want  of  instruction  and 
skill  in  the  art  were  wholly  unfit  to  perform  such  a  delicate  and  highly  important 
function.  It  is  a  matter  of  common  knowledge  that  before  the  passage  of  said 
act  the  merest  novice  in  the  art  was  frequently  employed  to  extract  and  operate 
upon  the  teeth,  to  the  unnecessary  discomfort,  and  sometimes  to  the  permanent 
injury  of  his  patient.  These  persons  were  not  physicians,  and,  as  a  rule,  had 
little  or  no  scientific  knowledge  of  the  human  body;  and  the  only  knowledge 
which  they  possessed  of  the  art  of  dentistry  was  that  which  they  had  acquired 
by  a  meager  and  haphazard  practice.  Such  knowledge,  while  it  might  have  been 
considered  sufficient  in  the  days  of  our  grandfathers,  is  wholly  inadequate  for 
present  demands;  for  while  dentistry,  as  an  independent  vocation,  may  have  had 
an  humble  and  comparatively  recent  origin,  yet  it  has  now  become  a  very  impor- 
tant branch  of  medical  science. 

From  what  we  have  thus  said,  it  would  seem  clear  that  the  reason  for  the 
passage  of  said  chapter  155  and  the  amendments  thereto  does  not  apply  to  the 
practice  of  dentistry  by  regular  physicians.  A  physician  is  one  who  practices  the 
art  of  healing  disease  and  preserving  health;  a  prescriber  of  remedies  for  sick- 
ness and  disease.  He  is  presumed  to  be  familiar  with  the  anatomy  of  the  human 
body  in  its  entirety;  to  understand  the  science  of  physiology  and  the  laws  of 
hygiene,  and  to  be  able  to  minister,  as  far  as  may  be,  to  the  relief  of  pain, 
disease,  and  physical  ailments  of  all  sorts  and  kinds  whatsoever.  And  while  it 
is  true  that  many  physicians  devote  themselves  entirely  to  some  branch  of  the 
medical  profession  for  which  they  have  made  special  preparation,  yet  the  fact 
that  they  have  first  qualified  themselves  generally  for  the  practice  of  medicine  and 
surgery  in  all  its  branches,  and  obtained  a  license  to  pursue  such  practice,  must 
be  held  to  entitle  them  to  operate  upon  the  teeth  and  jaw,  as  well  as  upon  other 
parts  of  the  human  organism,  unless  the  statute  now  under  consideration  clearly 


443 

prohibits  them.  By  the  strict  terms  of  said  statute,  taken  by  itself,  it  doubtless 
does  prohibit  physicians,  as  well  as  all  other  persons,  from  practicing  dentistry 
without  first  obtaining  the  required  certificate,  as  the  inhibition  is  general  and 
no  exception  is  made  in  favor  of  physicians.  Said  statute,  however,  should  not, 
in  our  judgment,  be  taken  by  itself,  but  should  be  construed  in  connection  with 
said  chapter  105,  which,  while  perhaps  not  strictly  in  pari  materia,  yet  deals 
with  the  general  subject  of  the  practice  of  medicine  and  surgery  and  prescribes 
the  qualifications  requisite  therefor. 

A  familiar  rule  in  the  construction  of  statutes  is  that  a  statute  must  be  con- 
strued with  reference  to  the  whole  system  of  which  it  forms  a  part,  and  that 
statutes  vipon  cognate  subjects  may  be  referred  to,  though  not  strictly  in  pari 
materia.  Another  rule  is  that  a  penal  statute  must  be  strictly  construed  and 
that  the  act  constituting  the  offense  must  be  within  the  letter  and  the  spirit 
of  the  statute.  And  in  the  construction  of  such  statutes  it  sometimes  becomes 
the  duty  of  courts,  in  giving  effect  to  the  manifest  intention  of  the  legislature,  to 
restrain,  enlarge,  or  qualify  the  ordinary  and  literal  meaning  of  the  language 
used.  Now  by  the  express  terms  of  said  chapter  165,  a  person  holding  a  certifi- 
cate, in  accordance  with  the  provisions -thereof,  is  authorized  to  practice  medicine 
and  surgery  in  all  its  branches.  Dentistry  is  now  a  well-recognized  branch  of 
surgery.  A  dentist  is  a  dental  surgeon.  He  performs  surgical  operations  upon 
the  teeth  and  jaw,  and,  as  incidental  thereto,  upon  the  flesh  connected  therewith. 
His  sphere  of  operations  then,  as  before  intimated,  is  included  in  the  larger  one 
of  the  physician  and  surgeon.  A  fair  and  reasonable  construction  of  the  two 
statutes  taken  together,  therefore,  comes  to  this:  That  the  General  Assembly, 
by  the  use  of  the  broad  and  general  language  used  in  said  chapter  165  relating 
to  the  authority  to  practice  medicine  and  surgery,  must  be  held  to  have  intended 
to  except  physicians  and  surgeons  from  the  restrictions  imposed  upon  other  per- 
sons, regarding  the  practice  of  dentistry,  by  said  chapter  155  and  the  amend- 
ments thereto.  This  view  is  strengthened  by  the  fact,  which  is  common  knowledge, 
that  it  has  always  been  the  custom  in  this  State,  and  probably  everywhere  else, 
for  physicians  to  treat  ailing  teeth,  to  extract  teeth,  and  to  perform  various  other 
professional  services  which  technically  come  within  the  purview  of  dentistry. 
Physicians  who  reside  in  the  country  towns  especially  have  always  been  called 
upon,  to  a  greater  or  less  extent,  for  the  performance  of  such  services.  And  to 
now  prohibit  them  from  thus  treating  their  patients  would  be  a  source  of  great 
inconvenience  and  in  many  cases  of  extreme  hardship  and  suffering  to  the  latter, 
as  well  as  an  interference  with  the  proper  and  legitimate  functions  of  the  former. 
And,  as  said  by  defendant's  counsel,  "any  construction  of  the  law  that  prevents 
the  general  practitioner  from  treating  any  part  of  the  human  body,  or  restricts 
him  in  the  discharge  of  his  professional  duties,  would  be  a  menace  to  the  public 
health  and  would  deprive  the  physician  of  the  right  to  practice  a  branch  of  his 
profession  that  is  as  old  as  the  history  of  medicine  itself." 

Again,  it  is  to  be  borne  in  mind  that  the  statutes  under  consideration  are 
highly  penal  in  their  nature.  And  it  is  a  familiar  rule  that,  in  the  construction 
of  such  statutes,  if  there  is  a  reasonable  doubt  as  to  whether  the  acts  done  are 
within  the  meaning  of  the  statute,  the  person  accused  of  the  violation  thereof 
is  entitled  to  the  benefit  of  that  doubt. 

For  the  reasons  above  given,  we  are  of  opinion  that  it  was  not  the  intention 
of  the  General  Assembly,  in  the  passage  of  said  chapter  155  and  the  amendments 
thereto,  to  preclude  physicians  and  surgeons  from  practicing  dentistry;  or,  at  any 
rate,  that  there  is  a  reasonable  doubt  whether  they  were  intended  to  be  thus 
precluded ;  and  hence  the  demurrer  must  be  ovrruled  and  the  #lea  sustained. 

Demurrer  overruled,  plea  in  bar  sustained,  and  indictment  quashed. 


VALIDITY  OF  LAW  AND  PROCEDURE  TO  REVOKE  CERTIFICATE 

State  Board  of  Health  v.  Boy,  22  B.  I.  538;  48  Ail.  802 

1901 

The  Supreme  Court  of  Rhode  Island  holds  constitutional  section  5  of  chapter 
165  of  the  General  Laws  of  Rhode  Island,  which  section  provides  that  the  State 
Board  of  Health   may  refuse  to  issue  a  certificate  to  practice  medicine  to  any 


444 

individual  guilty  of  grossly  unprofessional  conduct  of  a  character  likely  to  deceive 
or  defraud  the  public,  and  may  after  due  notice  and  hearing  revoke  a  certificate 
for  like  cause,  in  all  cases  of  refusal  or  revocation  the  applicant  to  have  the  right 
of  appeal  to  the  appellate  division  of  the  supreme  court,  which  may  affirm  or  over- 
rule the  decision  of  the  board.  It  does  not  think  that  it  violates  the  constitutional 
provision  that  the  judicial  power  of  the  state  shall  be  vested  in  a  supreme  and 
inferior  courts,  even  if  the  State  Board  of  Health  be  only  an  administrative 
board,  and  not  a  court  or  judicial  body.  It  says  that  the  way  provided  to  deter- 
mine, in  the  first  instance,  whether  a  trial  before  the  appellate  division  of  the 
supreme  court  is  desired,  is  speedy  and  inexpensive.  He  whose  application  for  a 
license  has  been  refused,  or  whose  license  is  proposed  to  be  revoked,  can  have  a 
judicial  trial  without  terms  or  condition,  by  taking  an  appeal,  which  is  prac- 
tically for  the  asking,  and  then  his  case  is  tried  in  full  before  the  highest  court  in 
the  state.  If  the  State  Board  of  Health  decides  in  his  favor,  he  gets  all  he  asks, 
with  little  trouble  and  expense.  If  the  decision  is  not  in  his  favor,  he  gets  for  the 
asking  a  trial  before  the  highest  tribunal  in  the  commonwealth.  It  is  difficult 
to  see  how  his  rights  could  be  better  protected.  The  appeal  vacates  the  proceed- 
ings before  the  board  so  far  as  results  go,  and  brings  the  matter  up  before  the 
appellate  division  de  novo  or  anew  for  trial  as  fully  as  though  it  had  never  been 
heard  before  the  board,  save  that  the  original  charge  or  petition  remains  as  the 
cause  of  trial,  and  save,  also,  that  before  it  can  be  so  tried  before  the  appellate 
division  it  must  have  been  brought  before  the  board.  Hence,  mere  errors  in  pro- 
ceeding do  not  afford  ground  for  overthrowing  or  annulling  the  whole  proceeding, 
so  that  an  appeal  provided '  to  correct  such  errors  can  not  be  prosecuted.  Nor 
does  the  court  think  there  is  any  conflict  with  the  constitutional  guaranties  that 
no  one  shall  be  deprived  of  life,  liberty  or  property  unless  by  the  judgment  of 
his  peers,  or  by  the  law  of  the  land,  or  be  denied  the  equal  protection  of  the  laws. 
Moreover,  while  it  says  that  it  is  axiomatic  that  one  can  not  judge  in  his  own 
case,  the  court  points  out  that  the  complaint  in  this  case  was  not  made  by  any 
member  of  the  board,  ex  officio  or  otherwise,  and  says  that  if  the  secretary  is 
personally  interested  in  the  complaint,  he  can  not  vote  upon  it,  and,  if  he  is 
officially  interested  merely  (if  such  a  distinction  can  be  taken),  his  action  is 
similar  to  boards  of  aldermen  in  various  health  matters  where  they  originate  the 
proceedings  which  may  be  appealed  from,  and  it  has  never  been  supposed  that 
their  so  doing  was  a  cause  for  quashing  the  proceedings.  And  the  court  holds 
that  if  a  person  obtains  his  certificate  to  practice  medicine  by  misrepresentation 
and  fraud  in  palming  off  upon  the  State  Board  of  Health  a  diploma  issued  to 
another  as  one  issued  to  himself,  he  is  guilty  of  conduct  likely  to  deceive  and 
defraud  the  public  by  inducing  the  public  to  believe  that  he  is  lawfully  entitled 
to  practice  medicine  by  reason  of  the  possession  of  qualifications  that  would 
honestly  entitle  him  to  the  certificate,  conduct  grossly  unprofessional,  which  is 
continued  every  time  he  practices  medicine  under  the  pretended  authority  of  such 
certificate.  No  answer  of  the  board  to  an  appeal  is  required,  and  one  is  simply 
nugatory. 


INDICTMENT  NEED  NOT   SET   FORTH  EXCEPTIONS 

State  v.  Flanagan,  25  B.  I.  869 

1903 

The  indictment  ^charges  that  the  defendant  "unlawfully  did  practice  medicine 
for  reward  and  compensation  without  first  having  obtained  a  certificate  from  the 
State  Board  of  Health,  and  without  possessing  any  of  the  qualifications  set  forth 
in  Gen.  Laws  cap.  165. 

Section  6  of  said  chapter  provides  that  nothing  therein  contained  shall  apply 
to  gratuitous  services  in  cases  of  emergency;  to  commissioned  surgeons  in  the 
United  States  army,  navy,  or  marine  hospital  service;  or  to  legally  qualified  physi- 
cians of  another  State,  called  to  see  a  particular  case,  who  do  not  open  an  office 
or  appoint  any  place  in  this  State  where  they  may  meet  patients  or  receive  calls. 

Section  7,  as  amended  by  Public  Laws  (1896),  cap.  340,  provides  that  com- 
plaints shall  be  made  by  the  secretary  of  the  State  Board  of  Health. 


445 

(1)  The  first  ground  of  demurrer  to  the  indictment  is  that  it  does  not  show 
that  the  secretary  made  any  complaint.  The  provision  has  no  relation  to  indict- 
ments, and  the  demurrer  on  this  ground  is  without  foundation. 

(2)  The  second  and  third  grounds  of  demurrer  are  that  the  indictment  does 
not  charge  the  defendant  with  the  offense  created  by  the  statute,  and  that  it  does 
not  charge  that  the  defendant  practiced  medicine  in  violation  of  the  provisions 
of  the  chapter,  these  being  the  words  used  in  section  8,  which  provides  the 
penalty. 

The  offense  set  out  in  sections  2  and  8  is  that  of  practicing  medicine  without 
a.  certificate,  the  words  "for  reward  or  compensation"  being  included  in  the  latter, 
but  not  in  the  former,  section.  This  indictment,  however,  has  all  the  essential 
charges  of  both  sections.  It  is  not  necessary  to  use  the  exact  words  of  the 
statute,  nor  to  refer  to  the  particular  section  on  which  the  indictment  is  based, 
if  it  adequately  charges  the  offense  therein  set  forth. 

(3)  The  defendant  argues  that,  by  reasons  of  the  exceptions  in  section  3,  the 
charge  in  the  indictment  may  be  true  and  yet  the  defendant  not  be  guilty  of  a 
violation  of  the  statute. 

The  statute  in  the  present  case  declares  it  to  be  unlawful  for  anyone  to  prac- 
tice medicine  or  surgery  who  has  not  exhibited  and  registered  in  the  town  clerk's 
office  his  authority  so  to  do,  as  provided  in  the  chapter.  It  then  declares  that 
the  act  shall  not  apply  to  United  States  surgeons  of  the  army  and  navy,  nor  to 
legally  qualified  physicians  of  another  State  called  to  a  particular  case,  etc. 
These  exceptions  do  not  limit  the  offense  by  description  or  qualification.  They 
are  exceptions  for  special  cases,  which  illustrate  the  rule  in  regard  to  exceptions 
very  clearly.  If  a  negative  averment  must  be  made,  it  must  be  proved.  It  would 
be  impo*ssible  for  the  attorney-general  to  prove  that  a  defendant  is  not  a  surgeon 
of  the  navy,  for  example.  There  is  no  record  in  this  State  to  which  he  could 
appeal.  He  could  not  compel  the  attendance  of  a  witness  from  the  navy  depart- 
ment at  Washington,  beyond  our  jurisdiction;  and  he  could  not  prove  it  by  depo- 
sition, because  of  the  constitutional  right  of  a  defendant  to  be  confronted  by 
the  witnesses  against  him.  To  show  that  a  defendant  is  not  a  legally  qualified 
physician  of  another  State  would  require  similar  testimony  from  every  State  in 
the  Union.     It  would  be  an  unreasonable  requirement. 

The  indictment  is  sufficient,  and  the  demurrer  is  overruled. 


COURT  CAN  NOT  CONSIDER  CHARGE  OF  PREJUDICE  AS  A  BASIS  FOR 

MANDAMUS 

Kenney  v.  State  Board  of  Dentistry,  26  R.  I.  538;  95  Atl.  932 

1904 

A  writ  of  mandamus  was  asked  for  to  compel  the  issuance  of  a  license  to  the 
petitioner  to  practice  dentistry  on  the  allegation  that  the  board  was  prejudiced 
against  the  petitioner,  and  had  not  given  her  a  fair  and  impartial  examination; 
it  was  sufficient  to  reply  that  this  court  could  take  no  notice  of  such  a  charge 
in  a  proceeding  of  this  sort.  If  she  was  rejected  because  of  improper  motives  on 
the  part  of  the  board,  her  remedy  was  by  an  action  for  damages  against  the 
individual  members  thereof,  alleging  bad  faith,  and  arbitrary  disregard  of  their 
duties,  or  improper  animus  against  the  applicant,  or  other  malversation  in  their 
discharge  of  duty,  but  not  by  mandamus.  The  court  also  says  that  whatever 
the  purpose  of  the  section  of  the  statute  requiring  the  board  to  keep  the  examina- 
tion papers  on  file  for  two  years  might  be,  it  was  too  clear  for  argument  that  such 
a  provision  had  nothing  whatsoever  to  do  with  regard  to  giving  jurisdiction  to 
this  court  to  review  the  findings  of  the  board.  In  short,  jurisdiction  in  a  case  of 
this  sort  does  not  depend  on  the  manner  in  which  the  board  has  discharged  its 
duties  in  matters  where  it  is  called  on  to  exercise  judgment  and  discretion,  but  it 
depends  on  whether  there  has  been  an  absolute  refusal  to  perform  either  a  minis- 
trial  or  a  judicial  duty. 


446 

INSUFFICIENT  EVIDENCE  FOR  REVOCATION  OF  LICENSE— COURT  NOT 
BODY  OF  MEDICAL  EXPERTS 

Macomoer  v.  State  Board  of  Health,  28  R.  I.  3;  65  Atl.  263 

1906 

'xhe  court  says  that  it  was  evidently  the  intention  of  the  State  Board  that  the 
court  should  infer,  from  the  language  of  various  advertisements,  that  the  state- 
ments therein  contained  were  untrue,  that  the  claims  made  were  extravagant 
and  therefore  likely  to  "deceive  and  defraud  the  public,"  and  that  the  physician 
by  allowing  his  name  to  appear  on  some  of  them,  or  by  distributing  some  of  them 
to  his  patients  or  to  inquiring  parties,  had  been  guilty  of  such  conduct.  Unfor- 
tunately, however,  the  State  Board  had  not  seen  fit  to  offer  any  testimony  to  show 
that  any  one  of  the  statements  set  forth  was  untrue  in  fact,  or  even  that  it  was 
extravagant  or  misleading,  or  tending  to  "deceive"  or  "defraud  the  public."  The 
evidence  was  submitted  to  the  court  as  if  the  court  were  a  body  of  medical  experts 
fully  qualified  to  pass  on  the  numerous  medical  questions  involved.  It  is  hardly 
necessary  to  say  that  this  court  disclaims  such  qualification  and  can  not  take 
judicial  notice  of  such  matters,  but  is  bound  to  form  its  judgments  in  such  mat- 
ters solely  on  the  evidence  adduced  before  it.  Again,  the  court  says,  with  regard 
to  a  device  advertised  about  which  the  State  Board  of  Health  seemed  to  desire  it 
to  infer  that  it  was  a  deception  and  a  fraud,  that  the  board  was  satisfied  to  place 
before  the  court  the  evidence  of  a  single  application  of  this  device  to  a  person 
not  shown  to  have  been  suffering  from  any  disease,  and  not  shown  to  be  of  any 
expert  capacity  in  the  observation  or  investigation  of  devices  of  that  character, 
and  desired  the  court  to  infer,  from  the  apparently  negative  character  of  this 
single  experiment,  that  the  repeated  application  of  this  device,  according  to  the 
directions  given  by  its  inventor,  was  of  no  value  to  the  patient,  and  therefore  was 
a  fraud  and  tended  to  "deceive  and  defraud  the  public."  This  evidence  was  purely 
negative,  and  did  not  assist  the  court  in  coming  to  any  conclusion  regarding  the 
value  or  want  of  value  of  the  device  in  question.  As  to  its  mechanical  efficiency, 
whether  or  not  it  was  capable  of  producing  an  electric  current  or  "thermal  elec- 
tricity," it  would  have  been  very  simple  to  have  subjected  the  device  to  the  exami- 
nation of  well-known  electrical  experts,  under  the  conditions  named  in  the  circu- 
lars, and  to  have  shown  whether  or  not  any  such  electrical  energy  was  produced. 
The  most  cogent  evidence  to  show  that  the  physician  had  been  guilty  of  "gross 
unprofessional  conduct  and  of  conduct  of  a  character  likely  to  deceive  and  defraud 
the  public"  would  have  been  evidence  from  some  one  or  more  persons  that  he 
or  they  had  been  actually  deceived  and  defrauded,  had  been  led  into  expense  with- 
out adequate  benefit,  or  had  been  told  that  they  would  be  cured  of  any  of  the 
various  diseases  mentioned,  and  had  taken  the  treatment  without  results,  or  with 
bad  results,  or  that  the  statements  made  as  to  cures  actually  effected  were  in 
fact  untrue. 


ILLEGAL    ADVERTISING    AND    PRACTICE    DEFINED 

State  v.  Thomas  Heffernan,  28  R.  I.  20;  64  Atl.  284 

1906 

The  defendant  was  charged  with  practicing  medicine  without  a  certificate 
from  the  State  Board  of  Health,  and  upon  trial  in  the  Superior  Court  was  found 
guilty.  He  appealed  to  the  Superior  Court  on  the  grounds  that  the  verdict  was 
contrary  to  the  evidence  and  to  the  law. 

The  Secretary  of  the  State  Board  of  Health  testified  that  the  defendant  was 
not  registered  under  the  laws  of  the  State;  that  he  had  an  office  in  the  city  of 
Providence;  that  the  name  "Dr.  Heffernan"  was  on  the  door;  that  there  was  also 
a  door  label  with  the  words  "Dr.  Thomas"  Heffernan,  Doctor  of  Dermatology  and 
Physical  Education." 

Certain  printed  advertisements  were  put  in  evidence,  stating  that  "Dr;  Heffer- 
nan has  opened  offices  at  86  Weybosset  Street,  Providence,  R.  I.,  for  the  practice 
of  Dermatology  and  Physical  Education,  in  the  cure  of  every  and  all  manner  of 
disease  on  the  inside  or  outside  of  the  human  body.    He  is  also  authorized  by  law 


447 

to  teach  this  Science  of  Healing  to  students  aspiring  to  become  nurses  and  doc- 
tors. Diplomas  are  grantable  by  the  Hefi'ernan  Institute  to  such  as  are  com- 
petent to  practice  the  science.  His  hours  for  free  public  consultations  are  from 
12  to  5,  week  days  only.  Special  appointments  may  be  made  at  liis  office  by  mail 
or  telephone  for  treatment  at  the  office  or  residence  outside  of  office  hours." 

Exhibit  B.  states:  "Dr.  Hefi'ernan  has  always  held  that  so-called  disease  is 
nothing  but  the  result  of  Nervous  Impediments,  and  he  has  proved  it  in  ten  thou- 
sand cases  right  here  in  Rhode  Island.  Here  they  are,"  it  then  enumerates  a 
large  number  of  cases  of  various  diseases,  and  says:  "The  last  case  of  Consump- 
tion was  cured  in  22  days.  Consultation  and  advice  absolutely  free.  The  only 
charge  is  for  Electro-Magnetic  Nerve  Food  and  work  done.  Dr.  Thomas  J.  Hef- 
fernan,  Dermatologist — Physical  Educator — Nerve  Specialist — 86  Weybosset  St., 
Providence." 

The  defendant  admits  that  these  advertisements  were  published  by  him. 

The  testimony  of  patients  treated  by  defendant,  as  well  as  receipts  for  money 
paid  him,  showed  that  he  had  treated  patients  for  compensation. 

The  defendant  testified  that  he  is  a  doctor  of  dermatology  and  physical  edu- 
cation, denied  that  he  had  ever  practiced  medicine  or  held  himself  out  as  a  medical 
doctor  and  said  that  he  had  never  applied  to  the  Board  of  Health  for  a  certificate. 
When  asked  if  he  had  any  authority  for  the  practice  of  dermatology  and  physical 
education,  he  said:  "I  have  a  certificate  from  the  State  in  the  form  of  a  charter." 
He  then  introduced  a  certificate  of  the  Secretary  of  State  that  certain  persons,  of 
whom  the  defendant  was  one,  "have  filed  *  *  *  an  agreement  to  form  a  cor- 
poration under  the  name  of  Hefi'ernan  Institute  of  Dermatology  and  Physical 
Education,  for  the  promoting,  teaching  and  practicing  of  Dermatology  and  Phys- 
ical Education  according  to  the  principles  developed  and  taught  by  Thomas  J. 
Hefi'ernan,  the  inventor  of  Nerve-Food. 

He  testified  that  he  had  been  interested  in  the  manufacture  of  nerve  food  for 
five  years,  that  he  had  given  it  all  his  time  since  about  June,  1905,  that  prior  to 
that  time  he  had  given  it  very  little  of  his  time,  attending  to  it  evenings  occasion- 
ally, but  not  regularly;  that  he  had  other  occupation  as  president  of  a  life  insur- 
ance company;  that  he  had  been  engaged  in  life  insurance  about  eleven  years, 
as  agent  in  part  and  president;  that  prior  to  that  he  had  been  in  the  market  and 
grocery  business;  that  he  had  no  medical  education,  never  attended  any  medical 
school  or  took  any  course  of  studies  in  medicine ;  that  he  discovered  the  nerve  food 
about  five  years  ago;  that  it  is  composed  of  herbs  and  fruit  entirely;  that  the 
nerve  food  also  contains  neuzoid,  which  is  made  from  grasses  imported  from 
Japan  and  other  places;  that  he  discovered  the  use  of  neuzoid  in  connection  with 
the  other  ingredients;  that  he  gets  a  royalty  from  the  sales  of  nerve  food. 

The  words  "practice  of  medicine"  as  used  in  Gen.  Laws,  cap.  165,  must  be 
construed  to  relate  to  the  practice  of  medicine  as  ordinarily  and  popularly  under- 
stood. If  the  acts  shown  by  the  evidence  amount  to  the  practice  of  medicine  as 
meant  by  the  statute,  the  defendant  is  not  protected  by  his  claim  of  ignorance 
of  any  or  all  of  the  learning  which  is  necessary  for  the  safe  and  successful  treat- 
ment of  disease  or  by  his  disclaimer  or  assumption  of  any  kind  or  number  of 
titles. 

A  person  who  testifies  that  he  is  not  a  medical  doctor,  and  states  that  he  never 
attended  a  school  or  took  any  course  of  studies  in  medicine,  but  claims  to  be  a 
doctor  of  dermatology  and  physical  education  by  virtue  of  an  Institute  of  Der- 
matology and  Physical  Education,  formed  by  himself  and  others  under  the  law 
relating  to  incorporation,  and  who  also  adds  the  title  "nerve  specialist,"  by  some 
authority  not  disclosed,  is  still  amenable  to  the  law  and  capable  of  practicing  med- 
icine in  violation  of  the  provisions  of  the  statute. 

The  court  is  of  the  opinion  that  the  acts  of  the  defendant  shown  in  the 
evidence  amount  to  the  practice  of  medicine  in  violation  of  the  law. 

The  defendant,  in  order  to  lawfully  practice  medicine  in  this  State,  would  be 
obliged  to  obtain  a  certificate  from  the  State  Board  of  Health.  The  definition  of 
medicine,  quoted  from  State  v.  Mylod,  supra,  would  certainly  include  a  remedial 
substance  having  the  qualities  claimed  by  the  defendant  for  nerve  food.  If  the 
defendant  prescribed  or  administered  something  which  he  claimed  was  good  for 
the  alleviation  of  pain,  or  the  cure  of  disease,  it  would  not  avail  him  to  show  by 
way  of  defense  that  what  he  so  administered  did  not  have  the  remedial  qualities 


448 

which  he  had  claimed  for  it.  The  statute  was  intended  to  protect  the  public  from 
pretense  and  sham  as  well  as  from  ignorance.  The  defendant's  exceptions  are 
overruled. 


NOT    ENTITLED    TO    LICENSE    WITHOUT    TAKING    EXAMINATION 

Moore  v.  Napier  et  al.,  64  8.  C.  564;  42  S.  E.  997 

1902 

The  supreme  court  holds  that  the  petitioner,  who  received  a  diploma  from  the 
South  Carolina  Medical  College,  but  who  studied  for  only  three  years,  was  not 
entitled  to  a  writ  of  mandamus  requiring  the  board  of  medical  examiners  to  issue 
to  him  a  license  to  practice  medicine  without  standing  an  examination  before  the 
board  as  to  his  qualifications  and  knowledge  of  medicine.  When  he  matriculated 
as  a  student  of  the  South  Carolina  Medical  College  the  course  of  study  established 
for  graduation  was  only  three  years;  before  receiving  his  diploma  the  South 
Carolina  Medical  College  established  a  four  years'  course  of  study,  commencing 
with  the  collegiate  year  of  1901;  and  he  took  only  a  three  years'  course.  The 
change  in  the  course  of  study  from  three  to  four  years  was  apparently  made  to 
enable  graduates  holding  diplomas  to  receive  the  benefit  of  the  amendatory 
statute  of  Feb.  15,  1901,  exempting  from  the  necessity  of  standing  an  examination 
before  the  board  of  medical  examiners  as  to  qualifications  and  fitness  "regular 
graduates,  holding  diplomas  issued  by  any  college  of  established  reputation  in 
this  state  which  has  a  four  years'  course  of  instruction  and  a  standard  of  not 
less  than  75  per  cent,  on  examination."  The  court  holds  that  it  was  the  manifest 
intention  of  the  amendatory  act  to  make  the  exemption  stated  when  satisfactory 
evidence  of  the  standing  of  the  college  is  made  to  the  board  of  medical  examiners, 
and  when  the  graduate  has  studied  for  four  years.  It  says  that,  in  the  exercise 
of  its  discretion,  it  will  refuse  the  writ  of  mandamus  when  the  effect  of  granting 
it  would  be  to  violate  the  intention  of  an  act  of  the  legislature. 


STATE  BOAED  NOT  REQUIRED  TO  RECOGNIZE  LICENSES  FROM 

OTHER  STATES 

Hollis  v.  State  Board  of  Medical  Examiners,  82  8.  C.  230;  64  8.  E.  232 

1909 

The  petitioner  asked  that  the  court  by  its  writ  of  mandamus  require  the 
State  Board  of  Medical  Examiners  to  issue  to  him  a  license  to  practice  medicine. 
The  application  rested  on  the  allegations  that  the  petitioner  had  stood  the  exami- 
nations required  by  the  boards  of  medical  examiners  of  the  states  of  Georgia 
and  Virginia,  and  had  received  from  each  of  those  boards  a  license  to  practice  as 
a  physician;  that  he  presented  these  licenses  to  the  defendant  board  of  medical 
examiners  of  South  Carolina,  tendering  at  the  same  time  the  statutory  fee  of  $5, 
and  demanded  a  license  to  practice  medicine  in  South  Carolina,  but  the  license 
was  refused;  that  at  the  time  of  the  demand  the  board  of  medical  examiners  of 
South  Carolina  recognized  licenses  granted  by  the  boards  of  examiners  of  the 
states  of  Georgia  and  Virginia  under  a  reciprocal  arrangement  existing  by  virtue 
of  section  9  of  an  act,  entitled  "An  act  to  regulate  the  practice  of  medicine  in 
South  Carolina,  to  provide  for  a  State  Board  of  Medical  Examiners,  and  to  define 
their  duties  and  powers,"  approved  Feb.  27,  1904,  which  provides:  "The  board 
shall  be  empowered  without  examination  to  indorse,  on  receipt  of  the  license  fee 
of  five  dollars,  the  licenses  issued  by  other  state  boards  having  an  equal  standard: 
Provided,  said  other  state  boards  accord  to  the  licenses  of  the  South  Carolina 
state  board  the  same  courtesy ;  and  said  other  state  board  licenses,  when  indorsed, 
shall  entitle  the  holder  to  registry  in  this  state,  and  to  all  the  rights  and  priv- 
ileges thereby  granted." 

The  statute  does  not  require  the  board  of  medical  examiners  of  South  Carolina 
to  indorse  or  recognize  licenses  from  other  states,  but  merely  empowers  them  to 
do  so  on  the  conditions  mentioned  in  the  statute.     The  matter  was  one  placed 


449 

by  the  statute  entirely  within  the  discretion  of  the  board.  The  case  of  State  v. 
Matthews,  81  S.  C,  414,  was  relied  on  by  the  petitioner;  but  that  case  in  its  facts 
was  the  opposite  of  this.  There  the  mandamus  was  issued  against  the  board  of 
pharmaceutical  examiners,  because  the  petitioner  was  a  graduate  of  a  reputable 
college  of  pharmacy,  and  the  statute  there  under  consideration  provides:  "No 
examination  shall  be  required  in  case  the  applicant  is  a  regular  graduate  in 
pharmacy  from  any  reputable  college;  but  such  applicant  shall  be  entitled  to  a 
license  on  furnishing  evidence  of  his  graduation  satisfactory  to  the  said  board  and 
on  payment  of  the  fee  of  five  dollars."  In  that  case  the  discretion  to  refuse  a 
license  to  the  graduate  of  a  reputable  college  of  pharmacy  was  expressly  denied 
to  the  board,  while  in  this  case  the  statute  contemplates  that  the  granting  or 
refusing  of  the  license  in  this  state  to  an  applicant  holding  a  license  from  the 
board  of  examiners  of  another  state  shall  be  entirely  within  the  discretion  of  the 
board  of  medical  examiners  of  South  Carolina.  Therefore  the  petition  for  manda- 
mus is  denied. 


PRIOR  ACQUITTAL  NO  BAR  TO  SECOND  INDICTMENT 

State  v.  Van  Buren,  86  8.  C.  297;  68  8.  E.  568 
1910 

The  supreme  court  reverses  a  judgment  sustaining  a  plea  of  former  jeopardy 
and  acquittal  in  a  prosecution  for  practicing  medicine  without  the  license  required 
by  statute.  It  says  that  the  first  indictment,  on  which  the  defendant  was  tried 
and  acquitted,  charged  that  he  practiced  medicine,  without  a  license,  on  October 
10,  and  November  5,  1908,  by  prescribing  for  the  physical  ailment  of  another: 
while  the  second  indictment  charged  that,  on  Oct.  28,  1908,  he  unlawfully  prac- 
ticed medicine  by  prescribing  for  and  treating  the  physical  ailments  of  Mary 
Crim.  The  statute  contemplates  that  every  violation  of  its  provisions  shall  be  a 
separate  offense.  The  question  was  whether  it  appeared  from  the  faces  of  the 
indictments  that  the  offenses  charged  were  the  same,  so  that  an  acquittal  under 
the  first  would  be  a  bar  to  a  trial  under  the  second. 

It  will  be  observed  that  the  charge  in  the  first  indictment  was  entirely  indefi- 
nite, except  as  to  the  time.  No  person  or  place  was  mentioned,  and  no  circum- 
stances or  particular  description,  except  the  dates  of  the  alleged  offenses.  For 
this  reason  the  time  mentioned  was  a  material  part  of  the  description  of  the 
offense,  and  it  was  necessary  to  prove  the  dates  as  alleged.  The  state,  therefore, 
on  the  trial  under  that  indictment,  was  limited  in  its  proof  to  showing  that  the 
defendant  practiced  medicine  without  a  license  on  October  10  and  November  5, 
1908.  This  being  so,  it  seems  perfectly  clear  that  the  defendant  was  never  tried 
and  was  never  acquitted  of  any  charge  except  that  of  practicing  medicine  without 
a  license  on  the-  days  named.  Whether  he  had  practiced  on  other  days  in  violation 
of  the  statute,  not  being  a  question  in  issue,  could  not  have  been  decided. 

The  test  laid  down  as  useful  and  generally  adequate,  though  not  infallible,  by 
which  it  may  be  decided  whether  two  indictments  charge  the  same  offense,  is: 
"Would  the  evidence  necessary  to  support  the  second  indictment  have  been  suffi- 
cient to  procure  a  legal  conviction  on  the  first?"  Apply  this  test.  Obviously 
evidence  to  support  the  second  indictment,  charging  the  practice  of  medicine 
without  a  license  by  prescribing  for  the  physical  ailments  of  Mary  Crim  on 
Oct.  28,  1908,  could  have  been  introduced  which  would  have  been  entirely  insuffi- 
cient to  produce  conviction  on  the  first  indictment;  for  no  evidence  would  have 
supported  the  first  indictment  except  evidence  of  practicing  medicine  on  the  days 
therein  named,  while  the  evidence  necessary  to  support  the  second  indictment  could 
have  been  of  practicing  medicine  by  prescribing  for  Mary  Crim  on  other  days 
than  those  to  which  the  first  indictment  was  confined.  The  circuit  court,  there- 
fore, erred  in  laying  down  as  a  legal  inference  that  the  second  indictment  neces- 
sarily charged  the  same  offense  as  the  first. 

On  a  trial  on  the  second  indictment  no  evidence  of  practicing  medicine  without 
a  license  on  the  days  named  in  the  first  indictment  would  be  admissible,  because 
the  defendant  had  been  tried  for  those  alleged  offenses  and  acquitted;  but  he  had 


450 

not  been  tried  for  a  like  offense  committed  at  any  other  time,  and  therefore  the 
first  trial  and  acquittal  was  ineffectual  as  a  plea  against  the  charge  alleged  in  the 
second  indictment  to  have  been  committed  at  a  different  time. 


FITTING    GLASSES    IS    THE    PRACTICE    OF    MEDICINE 

State  v.  Tegge,  19  S.  D.  23Jt;  103  N.  W.  11;  69  L.  R.  A.  50k 

1905 

Section  21  of  chapter  176  of  the  laws  of  South  Dakota  of  1903,  regulating 
the  practice  of  medicine,  provides  that:  "When  a  person  shall  append  or  prefix 
the  letters  M.B.,  or  M.D.,  or  the  title  Dr.  or  Doctor  or  any  other  sign  or 
appellation  in  a  medical  sense  to  his  or  her  name  or  shall  profess  publicly  to  be 
a  physician  or  surgeon  *  *  *  he  or  she  shall  be  regarded  as  practicinig 
within  the  meaning  of  this  act."  The  defendant,  who  was  charged  with  prac- 
ticing medicine  without  a  license,  had  a  sign  in  front  of  his  office  with  the  name 
"Dr.  Yegge"  thereon.  There  was  also  introduced  in  evidence  the  following 
notice:  "Ophthalmology.  A  Science  for  the  Analysis  of  the  Cause  of  Human 
Ills  and  How  to  Abolish  Them.  Everybody  should  know  that  this  is  not  a  science 
that  practices  by  guesses.  It  differentiates  between  functional  derangements 
and  disease.  By  its  assistance  nature  cures  cross-eyes,  without  operation;  head- 
ache without  drugs;  hysteria  without  a  straight  jacket;  female  disorders  with- 
out a  trip  to  the  hospital;  and  hundreds  of  nervous  troubles.  Simply  removing 
causes  is  the  secret.  A  true  Ophthalmologist  explains  your  case  to  you.  Dr. 
M.  F.  Yegge,"  giving  address  and  location  of  office.  The  Supreme  Court  thinks 
it  was  quite  clear  from  the  evidence  that  the  letters  "Dr."  were  used  in  a 
medical  sense,  and  affirms  a  conviction.  It  says  that  the  legislature  evidently 
intended,  in  enacting  the  law,  to  prevent  persons  not  properly  educated  in  the 
science  of  medicine  from  assuming  to  .  act  as  physicians  and  to  protect  the 
public,  and  it  has  deemed  it  proper  that  every  person  assuming  to  act  as  a  physi- 
cian or  surgeon  should  be  properly  licensed.  In  carrying  into  effect  this  law, 
it  was  competent  for  the  legislature  to  define,  as  it  has  assumed  to  do  in  Sec- 
tion 21,  what  evidence  shall  be  deemed  sufficient  to  constitute  a  practitioner 
within  the  meaning  of  the  act.  In  view  of  the  testimony  of  the  physicians  as 
to  the  proper  definition  of  ophthalmology,  it  was  quite  clear  from  the  defend- 
ant's advertisement  that  he  had  assumed  to  hold  himself  out  as  a  physician 
within  the  meaning  of  the  act.  And  it  was  not  only  clear  from  the  language 
of  the  advertisement  itself,  which  would  be  generally  understood  as  an  assump- 
tion on  his  part  of  being  a  regular  physician,  or  at  least  a  specialist  in  that 
branch  of  medicine  treating  of  ophthalmology,  but  the  legislature  has  declared 
that  prefixing  the  term  "Dr."  to  his  name  should  be  so  regarded.  The  law 
should  not  be  so  construed  as  to  deprive  the  people  of  the  benefits  intended  by 
the  act,  but  such  a  construction  should  be  given  it  as  to  carry  into  effect  the 
evident  intention  of  the  legislature. 


COURT  WILL  NOT  MANDAMUS  BOARD  IF  ACTING  REASONABLY 

State  ex  rel.   Williams  v.   State  Board   of  Dental   Examiners,   93    Tenn.    619; 

21  S.  W.  1019 
1894 

Petition  by  the  state  of  Tennessee,  on  the  relation  of  M.  B.  Williams,  against 
the  state  board  of  dental  examiners,  for  a  writ  of  mandamus.  Judgment  for 
defendant,  and  plaintiff  appeals.     Affirmed. 

The  relator,  M.  B.  Williams,  filed  his  petition  in  the  circuit  court  of  Hamilton 
County  against  the  state  board  of  dental  examiners,  seeking  to  compel  that  board 
to  issue  to  him  a  certificate  or  license  to  practice  dentistry  in  the  state  of  Tennes- 
see. In  his  petition  he  alleges  that  he  has  a  valid  diploma  from  the  Tennessee 
Medical  College  for  the  practice  of  dentistry;  that  said  college  is  a  reputable 
college,  duly  chartered  and  organized  under  the  laws  of  the  state,  and  that  in  it 


451 

is  annually  delivered  a  full  course  of  lectures  and  instructions  in  dentistry  and 
dental  surgery;  that  he  presented  said  diploma,  together  with  the  lawful  fee, 
to  the  defendant  board,  and  asked  them  to  file  and  register  the  same,  and  to  issue 
to  him  a  certificate  to  practice  dentistry  in  Tennessee;  that  said  board  refu-'-'l 
to  issue  such  certificate  and  license  on  said  diploma,  unless  petitioner  would 
submit  to  an  examination  satisfactory  to  the  board;  that  such  refusal  was  unwar- 
ranted, arbitrary,  and  unlawful.  To  this  petition  a  demurrer  was  filed,  setting 
out  that  the  functions  of  the  board  in  passing  upon  applications  for  license  are 
judicial,  and  discretionary  in  the  board,  and  its  action  on  the  application  was 
final  and  conclusive,  and  that  the  courts  have  no  jurisdiction  to  compel  the  board 
to  issue  such  certificate  or  license;  that  petitioner's  demand  was  purely  of  a 
private  nature,  relating  to  no  particular  public  duty,  function,  or  office,  and  there- 
fore the  writ  would  not  lie;  and  that  petitioner  refused  to  submit  to  an  examina- 
tion by  the  board,  and  therefore  shows  no  right  in  himself,  and  no  proper  demand, 
and  is  hence  entitled  to  no  relief.  The  demurrer  was  overruled,  and  thereupon 
defendant  answered  ( 1 )  that  the  Tennessee  Medical  College,  which  issued  the 
diploma,  is  not  a  reputable  college  of  dentistry;  (2)  that,  at  the  time  of  the 
issuance  of  the  diploma,  there  was  not  annually  delivered  a  full  course  of  lectures 
and  instructions  in  dentistry  and  dental  surgery;  that  the  board  was  not  by  law 
compelled  to  recognize  its  diplomas  as  valid  and  sufficient  to  warrant  the  issuance 
of  license;  that  the  board  was  invested  with  judicial  discretion  in  the  discharge  of 
its  duties  for  the  protection  of  the  public  against  incompetency,  and  in  order  to 
keep  the  practice  of  dentistry  in  the  state  up  to  a  reasonably  high  standard,  and 
that  it  cannot  be  controlled  and  coerced  in  the  exercise  of  this  judicial  discretion; 
that  the  license  was  refused  because  the  board  did  not  consider  the  college  which 
granted  the  diploma  as  a  reputable  college,  and  their  determination  of  this 
matter  is  final  and  conclusive,  and  mandamus  would  not  lie. 

It  appeared  from  the  record  that  the  state  board  had  determined  to  recognize 
as  "reputable"  such  schools  of  dentistry  as  belonged  to  the  National  Association 
of  Dental  College  Faculties,  and  all  others  that  delivered  two  full  courses  of 
"dental  lectures,"  and  furnished  sufficient  proof  of  their  regularity;  that  all 
students  not  holding  a  diploma  from  some  literary  college,  university,  or  high 
school,  or  a  teacher's  certificate  of  proficiency,  should  be  required  to  pass  a  satis- 
factory preliminary  examination  before  being  allowed  to  matriculate;  and  that  a 
three  years'  course  of  study  be  required  for  graduation.  It  further  appears  that 
when  the  relator  presented  his  diploma,  and  asked  to  be  licensed,  the  board 
refused  to  recognize  the  diploma,  but  offered  to  make  an  examination,  and,  if 
satisfactory,  to  grant  him  a  certificate;  and  notice  to  this  effect  was  given  to  the 
relator,  and  also  to  the  college  of  which  he  was  a  graduate.  It  does  not  appear 
that  there  was  any  prejudice  or  ill  will  on  the  part  of  the  state  board  toward  the 
Tennessee  Medical  College,  or  that  it  required  more  of  students  or  graduates 
of  this  college  than  of  others;  and  it  does  appear  that  the  Tennessee  Medical  Col- 
lege had,  subsequent  to  the  issuance  of  the  diploma  to  the  relator,  changed  their 
course  of  instruction  so  as  to  conform  more  nearly  to  that  recommended  by  the 
National  Association,  and  prescribed  by  the  state  board.  It  had  also  applied  to 
become  a  member  of  the  National  Association. 

On  the  hearing  of  the  case,  the  circuit  judge  excluded  all  evidence  introduced  by 
the  relator  to  show  that  the  Tennessee  Medical  College  was  a  college  in  good 
repute,  and  held  that  the  action  of  the  state  board  on  this  question  was  conclu- 
sive, and  dismissed  the  petition,  from  which  judgment  petitioner  appealed,  and 
has  assigned  errors  which  raise  the  main  question  as  to  the  power  and  functions 
of  the  state  board,  and  whether  their  action  is  final  and  conclusive  as  to  the 
issuance  of  license. 

It  is  insisted  on  the  part  of  the  board  that  the  power  and  duty  are  devolved 
on  it  by  the  terms  of  the  act  of  1891  to  determine  both  as  to  the  genuineness  of 
any  diploma  offered  to  it,  and  as  to  the  force  and  effect  of  such  diploma, — that  is, 
it  must  pass  not  only  on  the  question  whether  the  diploma  is  a  genuine  document, 
and  not  a  forgery,  but  also  whether  it  is  issued  by  a  reputable  college;  and  that 
its  determination  of  these  questions  is  final  and  conclusive,  and  its  action  thereon 
cannot  be  controlled  by  the  courts,  unless  it  appear  that  it  has  acted  arbitrarily 
or  from  prejudice,  so  as  to  unjustly  deprive  the  applicant  of  his  legal  rights;  and 
that  such  power  is  necessary  to  the  proper  execution  and  administration  of  the 


452 

law.  It  is  evident  from  the  purpose  and  tenor  of  the  act  that  it  was  intended 
that  an  applicant,  basing  his  claim  on  a  diploma  from  a  dental  college,  and 
relying  on  that,  and  declining  to  pass  an  examination,  must  have  a  diploma  from 
a  reputable  dental  college.  It  is  also  evident  that,  in  order  to  give  force  and 
effect  to  the  act,  the  board  of  examiners  provided  for  in  it  must  have  discretion 
and  power  to  determine,  in  cases  of  applicants  with  diplomas,  whether  they  come 
within  the  provisions  of  the  law,  and  whether  the  diplomas  tendered  by  them  as 
the  basis  of  their  application  emanate  from  a  reputable  dental  college.  Other- 
wise, diploma  issued  by  a  college  without  any  standing  or  reputation,  and  having 
an  existence  merely  in  name,  would  be  as  sufficient  and  satisfactory  as  if  it  came 
from  the  best  college  in  the  land.  There  must  be  the  power  to  determine  this 
question  lodged  somewhere,  and  it  is  evident  that  it  was  the  purpose  of  the 
legislature  to  lodge  it  in  the  board  of  examiners  created  by  the  act.  It  could 
not  be  lodged  in  a  more  appropriate  tribunal,  composed  of  men  learned  and 
trained  in  their  profession,  and  competent  to  pass  on,  not  only  the  qualifications 
of  applicants,  but  also  the  reputation  of  schools  within  the  state  engaged  in  dental 
education.  In  performing  their  duties,  the  board  is  exercising  a  quasi  judicial 
function;  and,  so  long  as  it  does  not  act  arbitrarily  and  illegally,  its  determina- 
tion cannot  be  coerced  by  the  courts  through  writs  of  mandamus  so  far  as  they 
involve  the  exercise  of  this  judicial  discretion. 

The  court  has  not  been  able  to  find  that  the  defendant  state  board  has  been 
guilty  of  arbitrarily  and  oppressively  exercising  its  duties  and  functions,  and  it 
has,  by  rules  which  seem  altogether  proper,  fixed  a  standard  by  which  to  deter- 
mine the  standing  of  dental  colleges,  and,  in  so  doing,  has  been  guided  by  the 
opinions  and  rules  of  a  national  association,  composed  of  eminent  dental  men, 
selected  in  different  states,  with  a  view  to  promoting  uniformity  of  decision  and 
advancing  of  the  profession;  and  having  by  these  rules  tested  the  diploma  pre- 
sented to  them,  and  determined  that  it  did  not  emanate  from  a  dental  college 
which  at  the  date  of  its  issuance  had  brought  itself  up  to  the  standard,  although 
it  may  have  subsequently  done  so,  the  court  is  of  the  opinion  their  finding  is 
warranted  by  the  law,  and  conclusive  on  the  facts,  and  not  subject  to  be  con- 
trolled by  writs  of  mandamus  from  the  courts.  The  adoption  of  the  rules  of  the 
National  Association  is  in  no  sense  a  surrender  of  the  board's  power  or  dis- 
cretion, but,  on  the  contrary,  an  effort  to  conform  to  a  system  recognized  over 
the  United  States  as  conducive  to  the  advancement  of  the  dental  science,  and 
promoting  the  best  interest  of  the  profession. 

The  judgment  of  the  court  below  is  affirmed,  and  the  petition  is  dismissed. 


SCOPE   OF   PROSECUTION   FOR  UNLAWFULLY  PRACTICING  MEDICINE 

Payne  v.  State,  112  Tenn.  587;  19  8.  W.  1025 

1904 

It  was  charged  that  Payne  did  unlawfully  practice  medicine  without  a  license. 
The  Supreme  Court  says  that,  while  it  is  true  that  in  certain  misdemeanor  cases 
testimony  may  be  introduced  tending  to  show  numerous  infractions  of  the  law, 
falling  within  the  period  of  limitation,  although  there  be  only  one  count  or 
charge  in  the  indictment  or  presentment,  and  true  that  in  such  cases  the  court, 
on  application  of  the  defendant,  will  compel  the  state  to  elect  the  particular 
offense  or  instance  on  which  it  will  ask  a  conviction  at  the  hands  of  the  jury, 
yet  the  court  does  not  think  the  rule  applies  to  a  case  such  as  this  one.  Here 
the  defendant  was  indicted  for  practicing  medicine  without  a  license.  The  term 
"practicing,"  in  respect  of  the  subject  in  connection  with  which  it  is  used,  indi- 
cates the  pursuit  of  a  business.  The  fact  that  the  defendant  was  pursuing  such 
business  may  be  proven  in  some  cases,  no  doubt,  by  a  single  act,  where  that  act 
is  clear  and  definite,  and  is  so  supported  by  other  circumstances  as  to  indicate 
that  he  was  indeed  pursuing  the  business  in  question;  but  in  all  cases  it  is  far 
more  satisfactory  that  a  series  of  acts  of  a  similar  nature  be  proven,  all  tending 
to  show  that  the  defendant  was  engaged  in  the  forbidden  occupation,  to  the 
end  that  the  jury  may  be  enabled  to  determine  from  the  defendant's  course  of 
conduct  whether  he  is  guilty  of  the  charge.     In  other  words,  under  such  a  charge, 


453 

each  several  instance  of  advising  patients,  prescribing  for  them,  or  administering 
medicine  to  them  is  not  necessarily  an  offense,  but  these  facts  all  taken  together, 
when  considered  in  connection  with  the  further  fact  that  the  defendant  had  no 
license  to  practice,  go  to  prove  the  charge  of  practicing  without  license.  It  is  no 
more  difficult  for  the  jury  to  examine  and  draw  conclusions  from  such  a  series 
of  facts  than  from  any  other  series  tending  to  support  a  general  proposition,  nor 
is  it  more  difficult  for  the  defendant  and  his  counsel  to  prepare  the  defense  and 
present  it  to  the  jury.  Nor  can  any  inconvenience  or  hardship  arise  in  pleading 
former  acquittal  or  former  conviction,  as  the  case  may  be,  in  event  there  should 
be  a  subsequent  prosecution.  Necessarily,  from  the  very  nature  of  the  case,  an 
indictment  for  unlawfully  practicing  medicine  would  cover  all  special  instances 
occurring  prior  to  the  indictment  or  presentment  in  the  particular  venue  or 
county,  and  going  to  sustain  the  main  charge;  hence  a  former  acquittal  or  con- 
viction could  be  pleaded  in  bar  of  any  subsequent  prosecution  based  on  such  prior 
acts. 

GIVING   "LIGHT   TREATMENTS,"   ETC.,   PRACTICE    OF   MEDICINE 

O'Neil  v.  State,  115  Term.  J,2~ ;  90  S.  W.  621;  3  L.  R.  A.  N.  8.  762 

1905 

The  facts  presented  were  practically  undisputed  and  embraced  the  following 
salient  points:  O'Neil,  who  was  the  defendant  in  the  court  below,  charged  with 
practicing  medicine  without  a  license,  opened  up  an  office  with  all  the  arrange- 
ments necessary  for  the  treatment  of  his  patients.  According  to  the  testimony, 
he  would  first  subject  his  patients  to  a  careful  examination,  including  a  micro- 
scopic test  of  a  drop  of  blood  taken  from  some  part  of  the  patient's  body.  He 
would  then  determine,  from  his  diagnosis,  the  nature  of  the  patient's  ailment 
and  whether  or  not  it  would  require  his  treatment.  It  was  shown  in  the  record 
that  the  method  of  treatment  was  practically  uniform  in  all  cases.  "The  patient 
is  denuded  of  clothing  and  placed  in  a  closed  cabinet,  and  his  body  is  thereon 
subjected  to  the  rays  of  two  large  electric  arc  lights,  one  being  located  in  front 
of  his  body  and  one  at  the  back.  This  treatment  is  continued  for  about  thirty 
minutes  at  each  sitting,  and  then  the  patient,  who  is  by  this  time  in  a  profuse 
perspiration,  is  taken  into  another  room  and  rubbed  off,  after  which  he  goes 
about  his  business.  In  addition  to  this  general  treatment  a  local  application  of 
the  rays  to  the  parts  specially  affected  is  made  in  some  cases."  In  addition  to 
prescribing  the  light  treatment  as  the  means  of  treatment  for  his  patients,  he 
gave  medicines  of  various  kinds,  kept  an  account  at  a  drug  store  where  med- 
icines were  purchased,  gave  prescriptions  in  the  form  of  orders  on  a  certain 
store,  advised  several  of  his  patients  to  take  certain  patent  medicines  as  an 
auxiliary  to  his  treatment,  and  was  addressed  and  known  as  Dr.  O'Neil.  The 
record  showed  further  that  he  was  accustomed  to  make  a  uniform  charge  of  $100 
in  each  case,  for  the  application  of  the  light  treatment,  but  made  no  charge  for 
medicines  prescribed;  hence  he  claimed  that  prescriptions  were  no  part  of  his 
treatment. 

The  principal  contentions  of  the  defendant  were:  1.  That  his  professional 
business  was  not  within  the  purview  of  the  statute  regulating  the  practice  of 
medicine  and  surgery,  for  the  reason  that  he  was  an  optician  within  one  of  the 
two  recognized  definitions  of  that  term,  and  was,  therefore,  expressly  excepted 
from  the  operation  of  the  statute.  2.  Conceding  that  his  business  was  compre- 
hended by  the  statute,  as  applied  to  him,  said  statute  was  unconstitutional  for 
two  reasons:  First,  his  method  of  practice  was  not  such  as  it  was  within  the 
power  of  the  legislature  to  regulate,  restrict  or  prohibit;  second,  the  regulation 
and  requirements  of  the  act,  as  applied  to  his  methods  of  practice,  were  arbi- 
trary and  unjust,  because  his  business  did  not  require  the  qualifications  prescribed 
by  the  statute  for  those  undertaking  to  practice  medicine  and  surgery.  But  the 
Supreme  Court  is  of  the  opinion  that  he  was  properly  convicted  of  practicing 
medicine  and  surgery  without  having  first  procured  a  certificate  of  license  from 
the  state  board  of  medical  examiners,  as  required  by  the  act  of  1901.  It  suggests 
that  the  definition  of  "optician"  ordinarily  understood  should  be  given  that  word 
in  the  statute.     Moreover,  as  the  proof  showed  that  the  defendant  made  a  micro- 


454 

scopic  examination  of  the  blood  in  his  diagnosis  of  disease,  and  also  wrote  pre- 
scriptions and  prescribed  remedies,  although  it  must  be  admitted  that  his  prin- 
cipal mode  of  treatment  was  by  what  he  denominated  the  "functional  ray,"  he 
could  not  claim  exemption  as  an  optician  even  under  the  very  technical  defini- 
tion of  the  word  which  he  invoked.  But  the  determinative  fact  against  him  on 
the  record  was  that  he  was  holding  himself  out  to  the  world  as  a  practitioner 
of  the  healing  arts  and  was  soliciting  patients  afflicted  with  disease  for  treatment. 


NO  RIGHTS  AS  PHYSICIAN  UNTIL  CERTIFICATE  IS  RECORDED 

State  v.  Haivorth,  91  Tenn.  (7  Pickle)  16;  18  S.  W.  399 
1891 

This  was  a  case  in  which  a  woman  physician,  Miss  Haworth,  sued  for  a  fee, 
and  the  defense  claimed  that  she  was  not  a  licensed  physician  within  the  mean- 
ing of  the  statute,  and  demurred  to  the  payment.  The  court  below  had  rendered 
judgment  for  the  defendant,  whereupon  the  plaintiff  appealed. 

In  delivering  the  opinion  of  the  court,  Judge  Lurton  said:  "Plaintiff  in  her 
evidence  states  that  on  Feb.  25,  1891,  she  did  register  herself  before  the  county 
court  clerk  and  obtained  her  certificate.  This  was  after  the  services  rendered 
to  defendant.  *  *  *  This  cannot  help  plaintiff's  case,  for  at  the  time  she 
attended  defendant  she  was  prohibited  from  practicing,  and  her  subsequent  regis- 
tration and  compliance  with  the  law  can  have  no  retrospective  effect.  Plaintiff 
says  that  prior  to  this  compliance  with  the  law  she  had  obtained  what  she  calls 
a  'temporary  license,'  but  cannot  say  she  had  this  'temporary  license'  at  the 
time  she  attended  defendant.  She  admits  that  this  'temporary  license'  was 
never  recorded  as  required  by  section  9  of  act  of  1889.  This  section  requires 
that  'every  person  holding  a  certificate  from  the  state  board  of  medical  exam- 
iners, or  the  county  court  clerk,  shall  have  it  recorded  in  the  office  of  the  county 
court  clerk  in  which  he  resides,  and  the  date  of  record  shall  be  endorsed  thereon.' 

"Until  such  record  is  made,  the  holder  of  such  certificate  shall  not  exercise 
any  of  the  rights  or  privileges  therein  conferred  to  practice  medicine.  In  view, 
therefore,  of  the  plain  provision  of  this  section,  it  cannot  matter  what  the  char- 
acter of  her  'temporary  license'  was,  inasmuch  as  it  was  not  recorded.  The 
contract  sued  upon  was  one  expressly  prohibited  by  the  statute.  Where  a  statute 
has  for  its  manifest  purpose  the  promotion  of  some  object  of  public  policy,  and 
prohibits  the  carrying  on  of  a  profession,  occupation,  trade  or  business,  except 
in  compliance  with  the  statute,  a  contract  made  in  violation  of  such  statute  can- 
not be  enforced.     This  is  familiar  law,  and  the  judgment  must  be  affirmed." 


LICENSE  ALONE  DOES  NOT  MAKE  A  MEDICAL  EXPERT 

Smith  v.  State,  5  Tex.  App.  318 

1878 

The  Court  of  Criminal  Appeals  of  Texas  holds  that  a  person  not  being  a  grad- 
uate of  any  school  of  medicine,  not  being  shown  to  have  read  any  books  on  sur- 
gery, or  to  have  been  at  all  familiar  with  gunshot  wounds,  his  mere  license  to 
practice  medicine,  even  predicated  on  the  granting  of  this  license  by  a  medical 
board,  does  not  qualify  him  as  an  expert,  to  testify  regarding  the  fatal  character 
of  a  wound.  

GENERAL  POLICE  POWER  OF  LEGISLATURE  SUFFICIENT  AUTHORITY 
FOR   STATE    REGULATION 

Logan  v.  State,  5  Tex.  App.  306 

1878 

The   Court   of   Appeals   of   Texas   holds   that  information   for   the   offense   of 

illegally  practicing  medicine  need  not  allege  that  the  accused  did  not  come  within 

the  exceptions  specified  in  the  provisos  to  the  fifth  section  of  the  act  of  August 


455 

21,  1870,  "to  regulate  the  practice  of  medicine."  Those  exceptions  were  matters 
of  defense.  The  constitution  of  Texas  of  1876  expressly  empowering  the  legisla- 
ture "to  pass  laws  prescribing  the  qualifications  of  practitioners  of  medicine  in 
this  state."  This  provision  enabled  the  legislature  to  authorize  and  require 
each  district  judge  to  appoinl  a  board  of  medical  examiners  for  bis  district,  as 
provided  for  in  the  third  section  of  said  act.  Moreover,  irrespective  of  this 
express  constitutional  provision  the  general  police  power  vested  in  the  legisla- 
ture sufficed  for  the  purpose.  The  court  says  that  the  people  of  this  country 
have  long  realized  the  necessity  of  legal  protection  against  incompetents  and 
pretenders  in  the  practice  of  medicine,  and  of  providing  some  means  for  inquir- 
ing into  the  qualifications  of  those  who  claimed  to  possess  the  necessary  pre- 
requisites to  practice  among  all  classes  this  important  profession.  At  a  very 
early  day,  whilst  Texas  was  an  independent  republic,  the  Congress  provided  by 
law  for  the  creation  of  a  board  of  medical  censors,  for  the  examination  of  those 
who  desired  to  practice  the  healing  art.  This  law,  however,  alter  remaining 
upon  the  statute  books  a  dead  letter,  was  finally  repealed. 


SINGLE    ACT    CONSTITUTES    VIOLATION    OF    LAW 

Antle  v.  State,  6  Tex.  App.  202 

1879 

The  Court  of  Appeals  of  Texas  holds  that,  under  the  act  of  1876  "to  regulate 
the  practice  of  medicine,"  requiring  that,  before  any  person  engaged  in  the  "prac- 
tice of  medicine,  in  any  of  its  branches  or  departments,"  he  should  comply  with 
certain  provisions  of  the  act,  an  information  need  not  allege  the  particular 
"branch  or  department"  of  medicine  in  which  the  defendants  engaged.  Proof 
that  the  defendant  engaged  in  any  branch  or  department  of  medicine  sustained 
the  allegation  that  he  engaged  "in  the  practice  of  medicine."  Nor  need  infor- 
mations for  the  violation  of  the  said  enactment  negative  the  exceptions  contained 
in  the  provisos  to  the  fifth  section;  they  were  matters  of  defense,  and  provable 
under  the  plea  of  not  guilty. 

There  was  no  error  in  refusing  to  charge  the  jury  that  "a  person  who  was 
attending  a  single  case  cannot  be  adjudged  guilty,  under  the  law,  of  practicing 
medicine,  even  though  he  held  and  filed  no  certificate,  as  required  by  the  law." 
That  did  not  give  such  an  interpretation  and  application  of  the  law  as  the  court 
deems  correct.  Bearing  in  mind  that  the  violation  charged  in  the  information 
was  the  engaging  in  the  practice  of  medicine  without  having  furnished  the  clerk 
with  a  certificate  of  qualification,  the  court  is  of  opinion  that  proof  of  one  act 
in  violation  of  the  statute  would  be  sufficient  to  support  a  conviction,  the  proof 
being  in  other  respects  sufficient — as,  that  he  held  himself  out  to  the  community 
in  which  he  lived  or  sojourned,  as  a  physician,  and  the  like. 


ISSUANCE   OF   BUT   ONE   TEMPORARY   CERTIFICATE   AUTHORIZED 

Peterson  v.  Seagraves,  9If  Tex.  390;  60  S.  W.  151 

1901 

A  statutory  provision  that  one  member  of  a  board  of  medical  examiners  may 
give  a  temporary  certificate  entitling  the  holder  to  practice  medicine  until  the 
next  meeting  of  the  board,  will  confer  on  an  individual  member  of  the  board 
authority  to  issue  but  one  temporary  certificate  to  a  person.  An  express  pro- 
hibition of  the  issuance  of  more  than  one  temporary  certificate  or  license  to  the 
same  person  it  deems  unnecessary.  Nor  does  it  consider  that  the  fact  that  the 
laws  regulating  the  practice  of  dentistry  and  pharmacy  in  the  state  may  contain 
provisions  expressly  forbidding  the  issuance  of  more  than  one  temporary  cer- 
tificate can  be  taken  to  determine  the  construction  of  a  practice  act  existing 
before  those  laws  were  passed. 


456 

LEGISLATURE    HAS    POWER    TO    REQUIRE    REREGISTRATION 

Wickes-Nease  v.  Watts,  30  Tex.   Civ.  App.  515;  70  8.  W.  1001 

1902 

The  Court  of  Civil  Appeals  holds  that  the  medical  practice  act  of  that  state 
of  Feb.  22,  1901,  did  not  go  into  effect  until  ninety  days  after  the  legislature 
adjourned  on  April  9,  1901.  The  reason  given  is  that  the  act  did  not  contain  any 
direction  when  it  should  go  into  effect,  without  which,  in  view  of  the  constitu- 
tion, it  could  not  go  into  effect  until  ninety  days  after  adjournment.  It  recited, 
"The  fact  that  there  is  no  law  in  force  adequately  providing  for  the  license  of 
physicians,  surgeons  and  midwives  creates  an  emergency  and  an  imperative  pub- 
lic necessity  that  the  constitutional  rule  requiring  bills  to  be  read  on  three  sev- 
eral days  be  suspended  and  this  act  placed  on  its  final  passage  and  it  is  so 
enacted."  But  the  court  sees  in  this  no  more  than  a  suspension  of  the  rules 
regarding  the  reading  of  bills.  It  also  holds  here  that  one  who  had  been  duly 
examined,  in  1882,  and  given  a  certificate  of  qualification,  which  he  had  recorded 
In  the  office  of  the  county  clerk,  but  which  he  had  never  filed  or  recorded  in  the 
office  of  the  clerk  of  the  district  court,  as  required  by  the  act  of  March  23,  1887; 
could  not  recover  for  professional  services  rendered  in  May,  1901,  the  court  hold- 
ing that  each  new  registration  act  must  be  strictly  observed  and  that  the  legis- 
lature has  power  to  pass  a  reregistration  act. 


PHYSICIAN  MUST   COMPLY  WITH   STATUTE   IN   ORDER   TO   RECOVER 

FOR  SERVICES 

Wooley  v.  Bell,  33  Tex.  Civ.  App.  399;  76  8.  W.  797 
1903 
It  is  now  settled,  the  Court  of  Civil  Appeals  of  Texas  says,  that  a  physician 
cannot  recover   for   professional   services   unless   he   shows   compliance   with   the 
statute  of  this  state    (Texas)    regulating  the  practice  of  medicine. 


NOT  TRAVELING  PHYSICIAN  UNDER  STATUTE 

Adams  v.  State,  45  Tex.  Cr.  B.  566;  78  8.  W.  935 
1904 
The  Court  of  Criminal  Appeals  of  Texas  reverses  a  conviction  of  Adams  for 
pursuing  the  occupation  of  a  medical  specialist  traveling  from  place  to  place, 
without  having  paid  the  occupation  tax  prescribed  by  the  act  of  1897.  It  says 
that  the  undisputed  facts  showed  that  he  came  to  G.  about  May  1,  1903,  and 
established  and  equipped  an  office;  that  he  maintained  an  office  at  E.,  and  at 
J.  and  B.;  that  he  divided  his  time  between  these  offices,  and  kept  an  assistant 
at  each  place,  and  treated  pationts  at  the  places  at  stated  intervals;  that  prior 
to  coming  to  G.  he  had  his  headquarters  and  lived  at  M.,  and  had  practiced  there 
and  at  J.,  and  had  lived  at  M.  eighteen  months;  that  on  leaving  M.  he  moved 
with  his  wife  and  children  to  G.,  where  they  lived  at  a  hotel  up  to  within  three 
weeks  of  the  time  of  filing  the  information,  when  his  wife  and  children  went  on 
a  visit  to  relatives  at  Q.  He  received  his  mail  at  G.,  which  was  his  headquarters, 
and  practiced  nowhere  except  at  his  offices  before  mentioned.  In  the  court's 
opinion  these  facts  did  not  constitute  him  a  traveling  physician  as  contemplated 
by  the  act. 


A   CERTIFICATE   INDISPENSABLE 

Stone  v.  State,  /f8  Tex.  Cr.  R.  Ill,;  S6  S.  W.  1029 

1905 

Where  the  plaintiff  had  a  diploma  from  an  institution  in  another  state,  it 

appeared  from  a  reading  of  section  8  of  the  act  of  the  twenty-seventh  legislature. 

although   one  may   have   a   diploma   "issued   by   a    bona  fide  medical   college   of 


457 

respectable  standing,"  still  he  must  receive  a  certificate  to  practice  medicine  from 
one  of  the  duly  constituted  boards  of  medical  examiners  of  the  state  of  I 
which  shall  be  recorded,  before  he  would  be  authorized  to  practice.  The  court 
takes  it,  however,  that  it  would  not  be  necessary  for  the  plaintiff  to  be  examined 
by  said  board,  if  he  had  complied  with  the  other  provisions  of  the  statute,  to-wit, 
filed  his  diploma,  with  satisfactory  evidence  that  his  diploma  was  issued  by  a 
lona  fide  medical  college  of  respectable  standing,  and  certificate  issued  by  the 
board,  and  properly  recorded,  as  required  by  the  statute.  But  he  did  not  secure 
a  certificate.  Whether  he  should  be  examined  or  not  was  immaterial,  in  the 
absence  of  the  certificate.  It  was  true,  the  statement  of  facts  showed  that  the 
board  refused  to  examine  him  or  issue  a  certificate.  This  was  a  matter  that 
might  be  reached  through  the  civil  courts.  But  the  certificate  was  the  sine  qua 
non  to  his  practicing  medicine.  Having  received  no  certificate,  he  could  not  prac- 
tice. As  to  whether  the  board  arbitrarily  refused  to  examine  him,  or  not,  was  a 
matter  with  which  this  court  had  nothing  to  do.  If  the  board  arbitrarily  refused 
him  a  certificate,  it  was  no  defense  to  a  prosecution  for  practicing  medicine,  since 
he  must  have  the  certificate  from  a  board  of  medical  examiners  before  he  could 
practice.  The  court  would  not  be  understood  as  holding  that  he  had  not  com- 
plied with  the  requirements  of  the  statute  in  order  to  secure  his  license,  but  does 
hold  that  he  had  not  secured  the  certificate  to  practice,  and  this  must  be  done 
before  he  could  practice  medicine.  Again,  it  says  that  it  does  hold  that  the  act 
is  constitutional,  and  that,  if  the  boards  of  medical  examiners  had  arbitrarily 
refused  to  give  the  plaintiff  a  certificate  or  license,  still  he  must  get  such  certifi- 
cate from  one  of  said  boards  before  he  could  practice.  Failing  in  this,  he  was 
subject  to  prosecution  under  the  terms  and  conditions  of  the  law.  It  was  con- 
tended that  the  act  was  unconstitutional  on  account  of  giving  preference  to  the 
allopathic,  homeopathic  and  eclectic  schools  of  medicine,  to  the  exclusion  of  all 
other  schools,-  but  the  court  does  not  think  it  repugnant  to  the  constitutional 
provision  that  "no  preference  shall  ever  be  given  by  law  to  any  schools  of  med- 
icine." 


NEED   FILE   CERTIFICATE    ONLY   IN   COUNTY   OF   RESIDENCE 

Person  v.  State,  53  Tex.  Cr.  R.  33Jf;  109  8.  W.  935 

1908 

The  Court  of  Criminal  Appeals  says  that  it  was  evidently  the  purpose  and 
intent  of  the  legislature  in  passing  the  act  of  1895,  that,  for  the  protection  of  soci- 
ety, all  persons  undertaking  to  practice  medicine  as  physicians,  or  act  as  physi- 
cians, should,  before  being  permitted  so  to  do,  be  required  to  furnish  evidence  of 
their  skill  and  preparation  by  being  compelled  to  file  in  the  office  of  the  district 
clerk  the  evidence  of  their  qualification,  such  instrument,  either  certificate  or 
diploma,  to  be  filed  in  the  county  of  their  residence,  or  where  at  the  time  they  were 
sojourning.  The  court  thinks  it  clear  that  where  the  physician  had  once  com- 
plied with  the  law  by  filing  a  certificate  or  diploma  in  the  county  where  he  resides 
that  he  would  and  should  be  permitted  to  accept  professional  calls  and  practice 
in  any  adjacent  county,  and  as  for  that  matter  throughout  the  counties  of  the 
state  where  his  services  might  be  needed,  and  that  it  would  not  be  required  of 
him  that  he  must  file  such  certificate  or  diploma  where  he  might  be  called  after 
he  had,  in  the  terms  of  the  law,  filed  such  diploma  in  the  county  where  he  resided, 
or  where  at  the  time  he  might  sojourn. 


INDICTMENT  SHOULD  ALLEGE  A  "PRACTICING  FOR  HIRE" 

Marshall  v.  State,  56  Tex.  Cr.  R,  205;  119  S.  W.  310 
1909 

Tom  Marshall  was  convicted  of  unlawfully  practicing  medicine,  and  he  appeals. 
Reversed,  and  prosecution  ordered  dismissed.  Appellant  was  convicted  of  unlaw- 
fully practicing  medicine,  and  his  punishment  assessed  at  a  fine  of  $100  and 
ninety  days'  imprisonment  in  the  county  jail.     The  charging  part  of  the  indict- 


458 

ment  is  as  follows :  "  *  *  *  In  the  county  of  Wilson  and  state  of  Texas,  did 
then  and  there  unlawfully  engage  in  the  practice  of  medicine  upon  a  human 
being,  to-wit,  upon  Mrs.  T.  Duke,  without  first  having  registered  in  the  office  of 
the  district  clerk  of  the  county  of  his  residence  his  authority  for  so  practicing 
medicine,  as  required  by  law.  *  *  *"  The  Assistant  Attorney  General  suggests 
that  the  indictment  is  defective  on  the  ground  that  the  indictment  should  have 
alleged  that  appellant  practiced  for  hire;  second,  it  should  have  stated  county  of 
residence  of  appellant  and  his  failure  to  file  certificate  in  said  county.  The  court 
thinks  the  indictment  is  insufficient.  The  judgment  is  accordingly  reversed,  and 
the  prosecution  ordered  dismissed. 


VALIDITY    AND    CONSTRUCTION    OF    ILLEGALLY    LIMITED    LICENSE- 
RIGHT  TO  VERIFICATION  LICENSE 

Board  of  Medical  Examiners  of  Texas  v.  Taylor,  120  S.  W.  574 

1909 

The  board  refused  Mrs.  Taylor's  application  for  the  verification  license  required 
by  the  medical  practice  act  of  1907  to  practice  medicine,  tendering  her  instead 
one  to  practice  "obstetrics  only."  This  was  based  on  the  fact  that  her  original 
license,  issued  by  a  district  board  of  medical  examiners  in  1889,  used  the  words, 
"branches  of  obstetrics  and  diseases  peculiar  to  women  and  children."  But  the 
district  board  certified  that  it  had  examined  the  applicant  "as  required  by  the 
laws  of  the  State  of  Texas,"  and  was  "satisfied"  as  to  her  "qualifications,"  while 
it  was  duly  established  that  from  such  time  she  had  been  a  legal  and  regular 
practitioner  of  medicine,  in  general  practice  in  the  state. 

Under  these  circumstances,  the  court  considers  that  she  was  entitled  to  a 
writ  of  mandamus  to  compel  the  issuance  of  a  verification  license  "to  practice 
medicine,"  without  the  limitation  sought  to  be  imposed  on  her.  It  says  that  it 
does  not  think  that  in  the  facts  admitted  and  by  giving  proper  effect  to  the  entire 
language  of  the  certificate  that  the  words  in  the  certificate,  "branches  of  obstet- 
rics and  diseases  peculiar  to  women  and  children,"  were  intended,  or  should  be 
so  construed,  by  the  board  to  declare  that  they  were  not  "satisfied"  as  to  the 
applicant's  qualifications  in  the  requirements  of  the  law.  If  the  board  intended 
by  the  words  just  mentioned  to  designate  in  the  certificate  the  branch  or  depart- 
ment of  medicine  that  she  was  to  practice,  any  such  designation  would  have  no 
legal  force  or  effect,  would  be  surplusage,  and  would  not  affect  her  legal  rights 
in  the  premises.  So  the  fact,  appearing  from  the  certificate  and  admitted,  that 
she  appeared  before  the  board,  not  as  an  applicant  to  practice  midwifery  or 
obstetrics  only,  and  bearing  in  mind  that  the  board  was  not  authorized  to  give 
certificates  "to  females  practicing  midwifery  exclusively,"  and  it  appearing  that 
the  board  intended  to  and  did  act  within  its  legal  authority,  it  follows  that  the 
court  would  not  be  justified  or  warranted  in  construing  the  certificate  in  question 
to  be  a  certificate  intended  to  certify  the  right  to  practice  obstetrics  only. 

Holding  as  the  court  does,  that  the  legal  effect  of  the  certificate  granted  to 
the  applicant  by  the  district  medical  board  was  to  authorize  her  "to  practice 
medicine  under  the  laws  at  the  time  in  force,"  it  follows  that  she  was  entitled 
to  a  verification  license  at  the  hands  of  the  state  board  as  broad  as  the  legal 
effect  of  her  certificate,  which,  by  force  of  the  law,  was  "to  practice  medicine." 
The  duty  of  verification  imposed  on  the  state  board  by  the  law  is  to  confirm  or 
substantiate  something  already  done.  The  power  involved  in  the  verification 
extends  to  the  ascertainment  of  the  genuineness  and  valid  existence  of  the  license 
previously  by  law  granted  by  authorized  board,  and  the  identity  of  the  person 
claiming  and  presenting  the  same,  there  being  no  cause  as  defined  in  section  11 
of  the  act  authorizing  a  refusal  to  issue. 


459 

OSTEOPATHS  MUST   SECURE  REGULAR  LICENSE   TO   PRACTICE    MED- 
ICINE—CONSTITUTIONALITY   OF    PRACTICE    ACT— 
"MEDICINE"    DEFINED 

Ex  Parte  Collins,  51  Tex.  Cr.  /,'.   !;  I  '.1  8.  W.  501 
1909 

The  Court  of  Criminal  Appeals  of  Texas  affirms  a  refusal  to  release  the  peti- 
tioner on  a  writ  of  habeas  corpus,  after  his  arrest  for  practicing  medicine  with- 
out a  license  as  required  by  the  act  of  1907  of  the  thirtieth  legislature.  It  says 
that  he  demanded  his  discharge  on  the  "round  that  the  act  was  unconstitutional, 
which  provided  that  an  osteopath  should  pay  a  license,  because  the  evidence 
showed  that  he  used  no  medicine  or  drugs  to  relieve  the  patients  and  therefore 
there  was  no  evidence  from  which  the  court  could  conclude  that  he  should  be 
held  in  custody  on  a  charge  of  practicing  medicine  without  a  license. 

Section  13  of  the  act  reads:  "Any  person  shall  be  regarded  as  practicing 
medicine  within  the  meaning  of  this  act,  (1)  who  shall  publicly  profess  to  be  a 
physician  or  surgeon  and  shall  treat  or  offer  to  treat  any  disease  or  disorder, 
mental  or  physical,  or  any  physical  deformity  or  injury,  by  any  system  or 
method,  or  to  effect  cures  thereof;  (2)  or  who  shall  treat  or  offer  to  treat  any 
disease  or  disorder,  mental  or  physical,  or  any  physical  deformity  or  injury  by 
any  system  or  method  or  to  effect  cures  thereof  and  charge  therefor,  directly  or 
indirectly,  money  or  other  compensation."  The  court  holds  that  the  decision 
appealed  from  was  correct,  and  that  the  statute  is  in  all  respects  constitutional. 

Nor  does  the  court  agree  with  the  contention  that  section  31  of  article  16 
of  the  Texas  constitution,  which  says  that  the  legislature  may  pass  laws  pre- 
scribing the  qualifications  of  practitioners  of  medicine  in  that  state,  and  punish 
persons  for  malpractice,  but  no  preference  shall  ever  be  given  by  law  to  any  school 
of  medicine,  limits  the  power  of  the  legislature  in  authorizing  the  licensing  of 
practitioners  to  practitioners  of  medicine ;  or  that  as  the  relator,  as  he  is  called, 
in  practicing  osteopathy  used  no  medicine,  therefore  he  did  not  come  within  the 
provisions  of  the  act.  As  the  court  understands  him  on  this  point,  he  conceded 
that  the  statute  was  broad  enough  to  cover  his  offense,  but  that  the  constitu- 
tional provision  just  cited  limited  the  power  of  the  legislature  to  the  regulation 
of  the  practice  of  medicine,  and  that  osteopathy  was  not  practicing  medicine. 

However,  the  constitution,  Avhen  it  demanded  the  regulation  of  the  practice 
of  medicine,  the  court  says,  was  not  attempting  to  say  that  the  legislature  was 
limited  to  any  mode  or  method  of  healing  in  order  to  regulate  it;  but  the  word 
"medicine,"  used  in  the  constitution,  means  the  art  of  healing  by  whatever  scien- 
tific or  supposedly  scientific  method  may  be  used.  It  means  the  art  of  prevent- 
ing, curing,  or  alleviating  diseases,  and  remedying,  as  far  as  possible,  results  of 
violence  and  accident.  It  further  means  something  which  is  supposed  to  possess, 
or  some  method  which  is  supposed  to  possess,  curative  power;  but  if  this  defini- 
tion of  medicine  is  not  correct,  as  stated  in  the  constitution,  yet  there  is  no  limi- 
tation on  the  power  of  the  legislature  in  said  provision  of  the  constitution  which 
inhibits  the  legislature  under  its  police  power  to  prevent  any  one  practicing  any 
species  or  character  of  remedy  to  cure  any  real  or  supposed  ill  that  the  body  has 
or  is  subject  to  for  pay. 

Acts  with  somewhat  similar  provisions  to  the  act  of  the  thirtieth  legislature 
now.  under  consideration  were  held  constitutional  by  the  Supreme  Court  of  Texas. 
So  the  court  holds  that  osteopathy  is  one  of  the  methods  of  curing  the  ills  to 
which  human  flesh  is  heir,  and  is  one  of  the  methods  of  curing  covered  by  the 
act  of  the  thirtieth  legislature.  In  other  words,  in  order  for  one  in  Texas  to 
practice  osteopathy  for  pay,  he  must  secure  a  license,  as  provided  for  by  the  act 
of  the  thirtieth  legislature.  This  the  relator  did  not  do.  The  court  accordingly 
holds  that  he  must  be  remanded  to  the  custody  of  the  sheriff,  where  he  will  be 
called  on  to  answer  the  complaint  and  information  relied  on  in  this  case. 


460 

VALIDITY   OF   STATUTE   AND    GROUNDS    FOR   REFUSAL    OF   VERIFI- 
CATION LICENSE 

Morse  v.  State  Board  of  Medical  Examiners,  122  S.  W.  Jf//6 

1909 

This  case  was  brought  by  said  Morse  to  compel  the  board  to  issue  to  him  a 
verification  license  to  practice  medicine.  The  defense  was  that  he  had  been  guilty 
of  grossly  unprofessional  or  dishonorable  conduct,  of  a  character  likely  to  deceive 
and  defraud  the  public,  section  11  of  the  medical  practice  act  of  April  17,  1907, 
being  relied  on  to.  support  the  position  taken.  This  section  provides  that  the 
board  may  refuse  to  issue  the  certificate  provided  for  in  case  of  the  presentation 
of  a  license,  certificate  or  diploma  illegally  or  fraudulently  obtained,  or  when 
fraud  or  deception  has  been  practiced  in  passing  the  examination;  for  convic- 
tion of  a  crime  of  the  grade  of  a  felony,  or  one  which  involves  moral  turpitude, 
or  procuring  or  aiding  or  abetting  the  procuring  of  a  criminal  abortion;  or  for 
"other  grossly  unprofessional  or  dishonorable  conduct  of  a  character  likely  to 
deceive  or  defraud  the  public,"  etc. 

It  was  contended  that  this  last  clause  was  too  general  and  uncertain,  and 
that  it  should  therefore  be  disregarded  and  the  statute  administered  as  though 
the  clause  were  eliminated  therefrom,  but  the  court  does  not  think  the  statute 
subject  to  the  objection  urged  against  it,  and  affirms  a  judgment  for  the  board. 
An  important  distinction,  the  court  says,  exists  between  granting  a  license  and 
revoking  a  license,  which  distinction  may  justify  the  application  of  different 
rules  of  law.  Many  courts  hold  that  the  cancelation  or  revocation  of  a  license 
to  practice  medicine  constitutes  a  penalty;  but  such  result  does  not  follow  from 
a  refusal  to  grant  such  license.  A  license  to  practice  medicine  is  a  privilege  or 
franchise  granted  by  the  government,  and  a  refusal  to  grant  such  franchise,  what- 
ever the  reason  may  be  for  such  refusal,  does  not  constitute  a  penalty. 

The  particular  clause  of  the  statute  assailed  in  this  case  not  only  requires 
proof  of  unprofessional  or  dishonorable  conduct,  but  it  must  be  other  grossly 
unprofessional  or  dishonorable  conduct  of  a  character  likely  to  deceive  or  defraud 
the  public.  It  is  not  unreasonable  to  conclude  that,  by  the  use  of  the  word 
"other,"  the  legislature  intended  that  the  conduct  referred  to  should  be  similar 
in  its  nature  to  that  designated  in  the  preceding  subdivision  of  that  section  and 
defined  as  "a  crime  of  the  grade  of  a  felony,  or  one  which  involves  moral  turpi- 
tude, or  procuring  or  aiding  or  abetting  the  procuring  of  a  criminal  abortion." 
Not  only  that,  but  such  conduct  is  further  qualified  by  the  use  of  the  word 
"grossly."  Furthermore,  such  conduct  must  not  only  be  grossly  unprofessional 
or  dishonorable,  but  it  must  be  of  a  character  likely  to  deceive  or  defraud  the 
public.  It  has  been  held,  in  construing  a  similar  statute,  that  the  language 
"unprofessional  or  dishonorable"  was  not  intended  to  describe  two  classes  of  con- 
duct, and  that  the  word  "unprofessional"  was  used  in  the  same  sense  as  "dishon- 
orable," and  not  as  signifying  "unethical." 

Nearly  if  not  all  the  states  have  statutes  requiring  applicants  for  license  to 
practice  either  medicine  or  law  to  present  satisfactory  evidence  of  good  moral 
character  and  this  court  knows  of  no  case  in  which  it  has  even  been  held  that 
such  a  statute  was  invalid  because  of  uncertainty.  It  would  seem  that  statutes 
of  the  latter  class  afford  as  much  room  for  difference  of  opinion  as  does  the 
statute  under  consideration  in  this  case. 


ILLEGAL  PRACTICE   OF  MEDICINE   BY  "MASSEUR  DOCTOR" 

Neioman  v.  State,  58  Tex.  Cr.  R.  223;  12k  8.  TF.  956 

1910 

The  evidence  showed  that  Newman  inserted  in  a  local  paper  an  advertisement 
which  read:  "Prof.  J.  M.  Newman,  the  Masseur  Doctor,  has  located,"  etc.  "He 
is  the  doctor  that  cures  consumption,  appendicitis,  as  well  as  all  other  diseases. 
Now  is  your  time  to  be  healed.  Come  and  see  him  while  he  is  here."  Soon  there- 
after he  undertook  to  treat  a  number  of  persons  for  sundry  ailments,  including 


461 

warts,  fever,  kidney  diseases,  and  stammering.  Testifying  in  his  own  behalf,  he 
stated  that  he  was  a  doctor  and  a  great  one;  that  he  could  cure  the  diseases  that 
the  M.D.'s  could  cure,  and  the  diseases  that  they  could  not  cure;  that  he  had 
treated  various  patients  of  various  ailments,  and  received  pay  for  his  services  in 
so  doing;  that  he  never  used  or  prescribed  medicine  in  treating  his  patients; 
that  he  used  only  the  massage  treatment;  that  he  only  rubbed  patients  for  their 
ailments,  and  at  no  time  pretended  to  be  a  physician  or  surgeon;  that  he  did 
not  practice  medicine,  but  was  opposed  to  the  use  of  any  medicine  to  effect  cures. 
It  was  shown  by  the  clerk  that  he  had  filed  no  license  or  authority  to  practice 
medicine. 

Section  10  of  the  Texas  medical  practice  act  of  1907  provides  that  the  act 
shall  not  apply,  among  others,  to  masseurs,  in  their  particular  sphere  of  labor, 
who  publicly  represent  themselves  as  such.  A  fair  analysis  of  section  13  classifies 
the  practitioners  who  shall  be  subject  and  amenable  to  the  law.  First,  it  includes 
any  one  who  shall  publicly  profess  to  be  a  physician,  and  claim  to  effect  cures 
by  any  system  or  method ;  and,  second,  those  who  shall  treat  or  offer  to  treat 
any  disease  by  any  system  or  method,  or  to  effect  cures  thereof,  and  charge  there- 
for. Evidently  the  words  "system  or  method"  were  intended  to  be  wide  enough 
in  their  scope  to  reach  any  and  every  school  of  medicine,  whether  based  on  the 
administration  of  pills,  potions,  or  pellets,  or  the  modern — as  many  persons 
believe,  excellent — system  of  osteopathy  or  massage.  The  history  of  legislation 
on  this  subject  in  Texas  shows  that  heretofore  the  legislature,  in  dealing  with 
the  practice  of  medicine,  had  attempted  to  classify  the  different  branches,  and 
provide  for  boards  for  the  different  schools.  Evidently  the  ineffectiveness  of 
these  laws  was  brought  to  public  attention,  because  it  is  certain  that  the  thir- 
tieth (1907)  legislature,  with  a  view  of  closing  every  avenue  of  escape  on  tech- 
nical grounds,  and  for  the  protection  of  the  public  health,  as  well  as  individual 
citizens,  against  the  quack  faker  and  charlatan,  undertook  to  provide  that  any 
person  shall  be  regarded  as  a  practitioner  of  medicine  who  professes  for  pay  to 
cure  any  kind  of  disorder  or  injury  by  any  system  or  by  any  method. 

The  first  statement  in  the  advertisement  put  out  by  the  accused  characterized 
him  as  a  masseur  doctor.  He  advertised  himself  to  be  the  doctor,  and  to  cure 
consumption,  appendicitis,  as  well  as  all  other  diseases,  and  warned  the  public, 
"now  is  your  time  to  be  healed."  Pursuant  to  his  invitation,  many  people  did 
call  to  see  him,  to  be  healed  of  their  troubles.  Can  it  be  said  that  this  man  was' 
not  holding  himself  out  as  a  physician,  as  one  who  treated  and  cured  diseases? 
Can  it  be  said  that  he  did  not,  in  the  sense  that  the  legislature  understood  this 
term  and  method  or  system  of  treatment,  know  he  was  not  exempt  on  the  mere 
ground  that  he  did  not  use  drugs  and  medicines  or  surgical  instruments? 

He  was  charged  with  unlawfully  engaging  in  the  practice  of  medicine  with- 
out having  first  registered  and  filed  for  record  the  certificate  required  by  law. 
He  was  undoubtedly  guilty  under  all  the  proof,  and  a  judgment  of  conviction  is 
affirmed. 


CONSTRUCTION   OF   MEDICAL  PRACTICE   ACTS   WITH   REFERENCE   TO 
CERTIFICATES   AND  VERIFICATION  LICENSES— REQUIREMENTS 
FOR  AND  CONSTRUCTION  OF  RESTRICTED  CERTIFICATE- 
PRESUMPTIONS  AS   TO  ACTS   OF   BOARDS— RIGHT 
TO  LICENSE 

State  Board  of  Medical  Examiners  v.  Taylor  and  Wife,  129  S.  W.  600 

1910 

Taylor  and  wife  sought  by  mandamus  to  compel  the  board  to  issue  to  Mrs. 
Taylor  the  verification  license  to  practice  medicine  provided  for  by  section  6 
of  the  act  of  1907.  A  district  board  of  medical  examiners  had  issued  to  her,  in 
1889,  a  certificate  stating  that  they  had  examined  her  and  "find  her  qualified  to 
practice  the  branches  of  obstetrics  and  diseases  peculiar  to  women  and  children, 
as  required  by  the  laws  of  the  state  of  Texas."  Under  this  she  practiced  med- 
icine from  its  date,  but  the  state  board  refused  any  evidence  of  authority  to 
practice,  except  a  license  to  practice  obstetrics  only. 


462 

The  provision  of  the  act  of  1907  above  referred  to  requires  the  issuance  by 
the  present  board  of  the  "verification  license"  on  production  of  documents  suffi- 
cient to  establish  "the  existence  and  validity"  of  the  "valid  and  existing  license 
heretofore  issued  by  previous  examining  boards."  What  the  verification  license 
is  to  be  the  law  does  not  expressly  say;  but  its  name  and  the  purpose  for  which 
it  is  required  plainly  indicate  that  it  is  to  be  merely  the  evidence  of  the  con- 
tinuance of  authority  to  practice  as  before,  neither  adding  to  nor  taking  from 
that  authority.  Pre-existing  lawful  authority  is  thus  recognized  and  continued 
in  force  by  compliance  with  the  law.  Therefore,  if  it  was  true  that  the  first 
certificate  was  a  valid  license  to  practice  medicine  at  all,  either  generally  or  in 
the  branches  mentioned  in  it,  it  must  follow  that  the  plaintiffs  were  entitled  to 
a  verification  license  to  continue  in  force  such  authority  as  it  had  conferred. 

The  law  formerly  regulating  the  licensing  of  physicians,  and  which  was  in 
force  Avhen  the  certificate  in  question  was  issued,  provided  that  it  should  be  the 
duty  of  the  board  to  examine  thoroughly  all  applicants  for  certificates  of  quali- 
fication to  practice  medicine,  in  any  of  its  branches  or  departments,  on  anatomy, 
physiology,  pathological  anatomy  and  pathology,  surgery,  obstetrics  and  chem- 
istry, and  when  satisfied  as  to  the  qualifications  of  an  applicant  should  grant  to 
him  a  certificate  to  that  effect,  which  should  entitle  him  to  practice  medicine. 

For  the  state  board  it  was  contended  that  the  certificate  granted  to  Mrs. 
Taylor  showed  by  its  statements  that  the  requirement  that  she  should  be  found 
qualified  in  all  those  subjects  was  not  complied  with,  and  that  it  was  issued  on 
a  finding  by  the  former  board  that  she  was  qualified  only  in  obstetrics  and  in 
diseases  peculiar  to  women  and  children,  and  that  she  was  not  qualified  in  the 
other  subjects  named  in  the  statute.  If  it  were  true  that  the  certificate  showed 
all  this,  it  woidd  probably  follow  that  the  board  so  transcended  its  authority  in 
extending  a  license  of  any  character  as  to  make  its  action  void,  since  it  was 
true  that  the  statute  did  not  admit  any  one  to  practice  without  the  examination 
in  all  the  prescribed  subjects,  resulting  in  the  satisfaction  of  the  board  of  the 
applicant's  proficiency  therein.  But  the  court  cannot  say  that  the  certificate 
meant  that,  consistently  with  the  presumption  that  the  board  did  its  duty,  which 
presumption  must  be  indulged  unless  its  action  showed  the  contrary.  The  most 
that  could  be  conceded  was  that  a  certificate  so  worded  might  be  used  to  cover 
up  a  state  of  facts  such  as  that  which  it  was  thus  asserted  to  show  affirmatively. 
It  could  not  even  be  admitted  that  those  facts  would  be  fairly  consistent  with 
the  truthfulness  of  the  certificate,  assuming  the  members  of  the'board  knew  their 
duty.  They  said  they  had  examined  the  applicant  as  required  by  law,  which 
meant  that  they  had  examined  her  in  all  the  named  subjects  and  that  they  had 
found  her  qualified  to  practice  the  branches  named.  They  could  not  truly  have 
said  that  she  was  so  qualified,  in  the  sense  of  the  law  they  were  sworn  to  "follow, 
unless  they  were  satisfied  that  she  possessed  the  knowledge  required  by  that  law 
of  all  the  prescribed  subjects. 

All  that  rendered  the  certificate  ambiguous  or  questionable  was  the  mention 
of  particular  branches,  and  that  might  be"  explained  by  the  fact  that  the  statute 
plainly  contemplated  that  there  might  be  applicants  who  intended  to  confine  their 
practice  to  particular  branches  or  departments,  which  made  it  natural,  and  not 
improper,  in  such  cases,  to  mention  the  branches  or  departments  in  the  certifi- 
cate, without  restricting  its  meaning  as  to  the  scope  of  the  examination  and  of 
the  qualifications  of  the  applicant.  The  statute  proceeded  on  the  conviction  that 
qualification  to  practice  in  any  branch  or  department  could  only  be  attained 
through  adequate  knowledge  of  the  subjects  named,  and  the  court  thinks  it  should 
be  presumed  that  a  board  of  medical  gentlemen,  selected  because  of  their  own 
proficiency,  would  proceed  on  a  like  conception,  and  would  not  issue  a  certificate 
affirming  fitness^  to  practice  a  branch  without  being  satisfied  themselves  of  the 
adequacy  of  the  information  of  the  person  licensed  concerning  those  things  declared 
to  be  essential  to  that  fitness. 

The  language,  "When  the  board  shall  be  satisfied  as  to  the  qualifications  of 
an  applicant,  they  shall  grant  him  a  certificate  to  that  effect,"  meant  no  more 
than  that  the  certificate  should  state  that  they  were  satisfied  as  to  his  qualifica- 
tions to  practice  medicine,  and  a  certificate  in  that  language  would  have  entitled 
an  applicant  to  practice  in  all  the  branches  or  departments,  or  in  particular 
branches  or  departments,  as  he  might  choose.     The  certificate  in  question,  if  the 


463 

board  understood  their  duty  and  spoke  the  truth,  implied  as  full  an  examination 
and  as  complete  qualifications  as  if  it  had  been  the  more  general  one  just 
instanced,  since,  under  the  statute,  no  one  could  be  qualified,  a-  was  certified, 
to  practice  in  the  diseases  peculiar  to  women  and  children  without  the  required 
knowledge  of  the  subjects  mentioned.  The  provisions  referred  to  did  not  apply 
to  females  practicing  midwifery. 

The  question  of  -whether  the  certificate  entitled  Mrs.  Taylor  to  practice  med- 
icine generally,  or  restricted  her  to  the  branches  mentioned,  was  imt  involved  in 
this  case.  The  state  board  were  not  required  to  enlarge  or  diminish  her  author- 
ity, but  only  to  issue  to  her  a  verification  license  to  have  the  effect  already 
explained.  The  judgment  of  the  district  court  required  them  to  issue  only  such 
a  verification  license  as  required  by  the  act  of  1907,  "according  to  the  provisions 
and  wording"  of  the  former  certificate,  and  to  that  the  Supreme  Court  thinks 
that  the  plaintiffs  were  entitled. 


VALIDITY  OF  MEDICAL  PRACTICE  ACT  UPHELD 

People  v.  Hasbrouck,  11  Utah,  291;  89  Vac.  918 

1805 

Richard  A.  Hasbrouck,  upon  conviction  before  a  commissioner  of  practicing 
medicine  without  a  license,  appealed,  and  from  a  judgment  of  conviction  in  the 
district  court  appeals.  Affirmed.  The  defendant  was  convicted  of  practicing 
medicine  without  a  license,  in  violation  of  the  provisions  of  the  act  of  1892 ;  and 
was  fined  $50.  An  appeal  was  taken  by  the  defendant,  who  alleged,  in  defense, 
that  the  appointment  of  the  board  by  the  governor  was  illegal  because  not  made 
with  the  consent  of-  the  council,  and  that  the  law  was  for  a  number  of  reasons 
unconstitutional.  The  defendant  was  adjudged  guilty  as  charged,  and  sentenced 
to  pay  a  fine  in  the  sum  of  $50.  From  this  judgment  the  defendant  appealed  to 
the  Supreme  Court. 

The  statute  upon  which  this  prosecution  is  founded  is  of  the  same  general 
character  as  the  statutes  of  a  large  number  of  states  upon  the  same  subject — the 
regulation  of  the  practice  of  medicine.  The  predominant  characteristic  and  pur- 
pose of  such  statutes  is  to  prevent  the  practice  of  medicine  by  incompetent  and 
improper  persons,  to  provide  for  the  ascertainment  and  certification  by  a  public 
officer  or  board  of  qualifications  to  practice,  and  for  the  public  registry  of  legally 
licensed  physicians,  and  to  prohibit  and  punish  the  practice  of  medicine  by  those 
who  have  failed  or  refused  to  obtain  the  prescribed  license  or  certificate  of  quali- 
fications. This  statute  provides  for  the  appointment  of  a  "board  of  seven  med- 
ical examiners  from  various  recognized  schools  of  medicine,"  who  shall  qualify 
by  taking  an  oath  that  they  are  "graduates  of  legally  chartered  colleges  in  good 
standing,  and  that  they  will  faithfully  perform  the  duties  of  their  office." 

After  reviewing  the  act  the  court  says  that  legislation  of  this  character  is  a 
legitimate  exercise  of  the  police  power  of  the  state,  and  that  depriving  persons 
not  so  qualified  of  the  right  to  practice  is  not  obnoxious  to  the  inhibition  of  the 
federal  constitution  against  the  deprivation  of  property  without  due  process  of 
law,  are  propositions  which  are  thoroughly  settled.  This  general  proposition  is 
admitted  by  the  appellant,  but  he  attacks  the  statute  as  violative  of  the  consti- 
tutional provisions  that  the  citizens  of  each  state  shall  be  entitled  to  all  the 
privileges  and  immunities  of  citizens  in  the  several  states,  in  that  graduates  of 
respectable  medical  colleges  who  were  at  the  time  of  the  passage  of  the  act 
engaged  in  actual  practice  of  medicine  in  the  territory  may  be  licensed,  under 
section  4  of  this  act,  without  examination,  and  upon  the  payment  of  a  fee  of 
only  $5 ;  while  citizens  of  a  state  or  other  territory  who  were  likewise  graduates 
of  respectable  medical  colleges,  but  who  Avere  not  engaged  in  actual  practice  in 
this  territory  at  the  time  of  the  passage  of  the  act,  are  not  entitled  to  such  privi- 
lege, but,  in  addition  to  presenting  their  diplomas  and  making  proof  of  their 
identity,  must  also  submit  to  an  examination  as  to  their  qualifications  to  prac- 
tice, and  must  pay  a  fee  of  $25.  This  statute  does  not  contravene  this  provision 
of  the  constitution;  nor  does  it  contravene  that  part  of  the  fourteenth  amend- 
ment which  declares  that  "no  state  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the  United  States";   nor  is 


464 

the  statute  obnoxious  to  either  of  these  constitutional  provisions  by  reason  of 
the  fact  that  persons  who  have  practiced  medicine  for  ten  years  continually  in 
this  territory  prior  to  the  taking  effect  of  the  act  may  be  licensed  to  practice 
upon  passing  a  satisfactory  examination,  although  without  a  diploma,  while 
others  are  required  both  to  pass  an  examination  and  to  possess  a  diploma.  The 
plain  answer  to  the  appellant's  objection  is  that  these  provisions  of  the  statute 
are  not  directed  against  the  citizens  of  other  states.  They  do  not  abridge  any 
of  their  privileges  or  immunities.  They  do  not  withhold  from  them  any  privi- 
leges or  immunities  which  are  not  withheld  also  from  citizens  of  Utah  similarly 
situated.  "Citizens  of  other  states  are  entitled  to  practice  medicine  and  surgery 
here  on  precisely  the  same  terms  and  subject  only  to  the  same  restrictions  as  our 
own  citizens."  Even  if  it  were  true  that  one  of  the  sorts  of  qualifications  is  such 
that  none  but  the  citizens  of  Utah  could  possess  it,  this  would  not  render  the  act 
obnoxious  to  this  provision  of  the  constitution. 

It  is  contended  by  the  appellant  that  the  statute  is  unconstitutional,  because 
no  disposition  is  directed  of  the  fees  authorized  by  the  act.  The  fees  provided 
for  are  all  manifestly  intended  to  meet  the  cost  of  executing  the  law,  and  are 
therefore  legitimate  and  proper  license  fees.  The  objection  that  the  statute 
attempts  to  confer  judicial  power  on  the  board  is  not  well  founded.  Many  execu- 
tive officers,  even  those  who  are  spoken  of  as  purely  ministerial  officers,  act 
judicially  in  the  determination  of  facts  in  the  performance  of  their 
official  duties;  and  in  so  doing  they  do  not  exercise  "judicial  power," 
as  that  phrase  is  commonly  used,  and  as  it  is  used  in  the  organic 
act,  in  conferring  judicial  power  upon  specified  courts.  The  powers  conferred  on 
the  board  of  medical  examiners  are  no  wise  different  in  character  in  this  respect 
from  those  exercised  by  the  examiners  of  candidates  to  teach  in  our  public  schools, 
or  by  tax  assessors  or  boards  of  equalization  in  determining,  for  purposes  of  tax- 
ation, the  value  of  property.  The  ascertainment  and  determination  of  qualifica- 
tions to  practice  medicine  by  a  board  of  competent  experts,  appointed  for  that 
purpose,  is  not  the  exercise  of  a  power  which  appropriately  belongs  to  the  judicial 
department  of  the  government.  It  does  not  trench  upon  the  judicial  power. 
This  act  entitles  every  persson  whose  qualifications  to  practice  medicine,  in 
point  of  learning  and  skill,  or  in  point  of  moral  character,  is  in  any  manner 
drawn  in  question,  to  a  hearing  before  the  board.  It  would  be  absurd  to  contend 
that  the  courts  must  be  converted  into  boards  of  medical  examiners  to  ascertain 
and  decide  whether  an  individual  possesses  such  technical  knowledge  or  such 
moral  character  that  he  may  be  permitted  to  practice  medicine  with  safety  to 
the  public,  or  whether  the  institution  from  which  he  holds  a  diploma  is  a  "respect- 
able medical  college,"  or,  on  the  other  hand,  a  fraud  or  an  institution  whose 
instruction  is  unfit  to  properly  and  decently  prepare  its  graduates  for  practice. 
The  determination  of  these  and  kindred  questions  relating  to  the  fitness  of  an 
individual  to  carry  on  an  occupation  requiring  for  its  safe  and  proper  conduct  a 
person  of  decent  moral  character,  or  to  engage  in  an  occupation  requiring  special 
knowledge,  care,  and  prudence,  such  as  that  of  a  pilot  or  many  others  which  may 
be  mentioned,  including,  of  course,  the  practice  of  the  professions  of  law  and 
medicine,  may  constitutionally  be  and  is  very  properly  devolved  everywhere  upon 
boards  of  inspection  composed  of  experts  in  the  particular  occupation  in  ques- 
tion. The  right  of  every  person  whose  qualifications,  mental  or  moral,  are  to 
be  determined  by  this  board,  to  a  hearing  before  it,  is  clearly  implied  by  the  pro- 
visions for  the  administration  or  oaths  and  the  taking  of  testimony  "in  all 
matters  relating  to  its  duties,"  and  from  other  provisions  of  the  act.  If  the 
board  should,  through  malice  or  prejudice  or  dishonesty,  arbitrarily  refuse  or 
revoke  a  license,  the  injured  party  would  have  his  remedy  by  appropriate  pro- 
ceedings in  the  courts,  and  the  board  would  be  restrained  from  doing  or  com- 
pelled to  undo  the  wrong.  But,  if  the  action  of  the  board  is  in  good  faith,  its 
final  determination  of  qualification  is  not  obnoxious  to  any  constitutional  pro- 
vision. Due  process  of  law  is  not  necessarily  judicial  process.  A  uniform  rule 
and  a  uniform  process  for  ascertaining  and  determining  qualifications  as  pre- 
scribed by  this  act,  operating  equally  on  all  persons,  affording  to  all  persons  the 
right  to  establish  their  qualification  before  the  board,  this  is  due  process  of  law. 

The  validity  of  the  appointment  of  the  board  acting  at  the  time  specified  in 
the  complaint  is   challenged  upon  the   ground  that  none   of   the  members  were 


465 

appointed  by,  and  with  the  advice  and  consent  of,  the  council.  It  may  be  noted, 
that  not  only  was  the  act  approved  on  the  last  day  of  the  session  of  the  legisla- 
ture which  enacted  it,  but,  there  being  no  specified  time  mentioned  in  the  act 
upon  which  it  should  go  into  effect,  it  would  take  effect  upon  June  1,  1892.  It 
was  therefore  legally  impossible  for  the  governor  to  appoint  a  board  of  medical 
examiners  by  and  with  the  advice  and  consent  of  the  upper  house  of  the  legislature 
which  passed  the  act.  The  provision  that  the  governor  shall  appoint  the  board 
upon  the  passage  of  this  act  is  to  be  construed  as  equivalent  to  a  provision  that  he 
should  appoint  upon  the  taking  effect  of.the  act. 


REPEAL  OF  PRACTICE  ACT  NO  JUSTIFICATION  FOR  SUIT  FOR  ILLEGAL 

SERVICES 

Warren  v.  Saxby,  12  Yt.  U6 
1840 

In  this  case  the  plaintiff  sought  to  recover  for  medicines,  and  for  services 
rendered  the  defendant,  as  a  physician,  without  being  licensed  in  the  manner 
provided  by  the  statute  of  1820,  and  while  that  act  was  in  force.  The  act  pro- 
vides that  no  person,  who  shall  be  employed  in  the  practice  of  physic  and  surgery, 
etc.,  within  this  state,  shall,  hereafter,  have  any  right  to  make  any  demand  for 
the  same,  or  shall  be  entitled  to  the  benefit  of  law,  for  the  collection  of  his  fees, 
etc.,  unless,  etc.,  stating  the  modes  of  license.  This  statute  was  repealed  before 
the  commencement  of  the  present  action.  It  is  now  contended  that  the  plaintiff 
is  entitled  to  recover.  The  history  of  legislation  in  regard  to  apothecaries,  sur- 
geons and  physicians,  from  the  date  of  the  statute  of  14  Henry  3,  when  the  sub- 
ject was  first  attempted  to  be  regulated  by  law  in  England,  to  the  present  time, 
would  afford  a  curious  subject  of  investigation,  and  might  tend,  in  some  degree, 
to  throw  light  upon  the  present  question.  Since  that  period  there  have  been 
many  statutes  passed  in  England,  with  a  view  to  establish  scientific  practice 
and  to  discourage  mere  pretenders.  The  College  of  Physicians  was  incorporated 
there  as  early  as  14th  Henry  6,  with  most  enormous  powers,  both  of  restriction 
and  coercion,  in  relation  to  all  who  attempted  either  of  the  above  named  acts. 
And  it  seems  still  to  be  supposed,  there,  that  much  harm  may  be  prevented  by 
these  legislative  restrictions.  In  this  state,  no  doubt,  the  legislature  which  passed 
the  statute  of  1820  entertained  the  same  opinion.  "But,  as  the  grand  contest  here 
is,  first,  for  subsistence,  and,  finally,  for  wealth,  which  is  supposed  by  many  to 
confer  almost  the  only  solid  distinction,  it  was  well  supposed,  by  the  legislature, 
that,  by  depriving  mere  pretenders,  in  physic  and  surgery,  of  all  hope  of  pecuni- 
ary advantage,  they  would  remove  from  that  class  of  practitioners  the  principal 
motive  to  intrude  themselves  upon  the  educated  members  of  that  honorable  pro- 
fession. And  the  court  entertains  no  doubt  that  it  was  the  design  of  the  legisla- 
ture, not  only  to  take  away  all  right  of  action  for  such  services,  but  to  make 
them,  when  rendered,  absolutely  gratuitous.  Such  being  the  effect  of  the  statute, 
it  is  obvious  the  mere  repeal  of  the  statute  could  give  no  right  of  action  for 
past  services.  It  needed  something  more  than  to  remove  an  impediment.  There 
must  be  life  infused,  and  a  course  of  action  created,  which  before  did  not  exist. 
This  was  not  done  by  the  repeal  of  the  statute  and  could  not  legally  and  con- 
stitutionally have  been  done  by  a  positive  enactment  even.  It  is  not  competent 
for  the  legislature,  even,  to  create  an  obligation  out  of  a  by-gone  transaction, 
which,  at  the  time  of  its  occurrence,  all  parties  understood  to  be  and  was  strictly 
gratuitous.  If  this  had  been  the  repeal  of  a  statute  of  limitations,  which  only 
interposes  an  impediment  to  the  recovery,  or  if  it  had  been  the  repeal  of  the 
statute  against  frauds  and  perjuries,  which  provides  that  'no  action  shall  be 
maintained'  upon  certain  contracts  unless  reduced  to  writing,  leaving  the  con- 
tracts themselves  in  force,  for  certain  purposes,  it  might  have  merited  a  different 
consideration." 


466 

BOARD    HAS    POWER    TO    PASS    DIPLOMA 

Townshend  v.  The  Board  of  Censors,  62  Vt.  313;  19  Atl.  635;  8  L.  R.  A.  112 

1890 

The  plaintiff  claimed  to  be  a  graduate  of  the  Vermont  Medical  College  and 
asked  for  a  writ  of  mandamus  against  the  censors  of  the  Vermont  State  Eclectic 
Medical  Society,  commanding  them  to  issue  her  a  certificate  to  practice  medicine. 
The  act  of  1880  provides  that  every  medical  society  chartered  by  the  legislature 
shall  issue  certificates  to  physicians  and  surgeons  who  furnish  evidence  by  diploma 
from  a  medical  college,  or  by  examination  satisfying  the  censors  of  the  medical 
society  that  the  applicant  is  qualified  to  practice  medicine.  The  record  shows 
that  the  censors  of  the  Vermont  State  Eclectic  Medical  Society  refused  to  issue 
a  certificate  on  the  ground  that  the  Vermont  Medical  College  had  no  legal  right 
to  confer  the  degree  of  M.D.  The  question  at  issue  is,  therefore,  the  right  of 
the  medical  college  to  issue  diplomas.  The  court  says  that  it  is  plain  that  the 
board  of  censors  has  the  power  to  decide  whether  a  diploma  presented  to  it  is 
genuine  or  spurious.  In  this  case  the  board  decided  that  this  diploma  did  not 
have  legal  efficacy  to  warrant  the  issuance  of  a  license.  A  corporation  has  such 
power  only  as  is  conferred  by  its  charter  with  such  incidental  powers  as  are 
necessary  to  enable  it  to  exercise  its  chartered  power.  No  express  power  to  con- 
fer degrees  can  be  found  in  the  statute  under  which  this  medical  college  was 
organized.  Hence  the  power  to  confer  degrees,  if  it  exists  at  all,  must  be  classed 
as  incidental  to  the  general  powers  of  the  corporation.  The  degree  of  M.D.  is 
something  more  than  a  mere  honorary  title.  It  is  a  certificate  attesting  the  fact 
that  the  person  upon  whom  it  has  been  conferred  has  successfully  mastered  the 
curriculum  of  study  prescribed  by  the  authorities  of  the  institution  legally 
authorized  to  issue  such  a  certificate.  A  diploma  conferring  the  degree  of  M.D. 
has,  therefore,  legal  sanction  and  authority.  It  also  carries  with  it  the  confi- 
dence and  patronage  of  the  general  public  and  thereby  becomes  a  property  right 
of  great  pecuniary  value.  The  power  to  confer  degrees  not  being  conferred  explic- 
itly by  the  statute  and  not  being  necessary  to  enable  a  literary  and  scientific 
institution  to  carry  forward  studies  of  a  literary  or  scientific  character,  clearly 
does  not  exist.  The  legislature  has  evidently  intended  that  special  authority 
was  necessary  in  order  to  confer  degrees.  The  court  is  clearly  of  the  opinion  that 
the  college  in  question  has  no  power  in  its  articles  of  association  to  confer  degrees 
of  any  kind.  To  hold  that  the  legislature,  by  the  general  law,  intended  that  any 
three  men  in  any  town  in  the  state,  however  illiterate  or  irresponsible,  might 
organize  and  flood  the  state  with  doctors  of  medicine,  doctors  of  law,  doctors  of 
divinity  and  all  the  various  titles  that  everywhere  in  the  civilized  world  have 
signified  high  attainment  and  special  equipment  for  professional  work,  is  absurd.. 
The  court  holds  that  the  plaintiff  did  not  furnish  the  board  sufficient  evidence 
of  qualification  to  entitle  her  to  the  license  asked  for  and  is  consequently  not 
entitled  to  a  writ  of  mandamus. 


FAILURE   TO    APPEAR    BEFORE    BOARD— REVOKING   LICENSE 

Stevens  v.  Hill,  U,  Vt.  16  h;  52  Atl.  Jf37 

1902 

The  Supreme  Court  says  that  the  petitioner  got  himself  licensed  to  practice 
medicine  on  the  strength  of  a  diploma  from  a  college  in  Ohio.  The  board  of 
censors  who  licensed  him  became  suspicious  that  the  diploma  was  fraudulent  and 
sent  him  word  that  they  wanted  to  see  it  again.  He  promised  to  come,  but 
failed  to  keep  his  word.  Finally,  they  had  him  summoned  to  appear  and  show 
cause  why  his  license  should  not  be  revoked  as  having  been  procured  by  fraud 
in  presenting  a  forged  and  spurious  diploma.  He  did  not  appear,  and  the  board 
revoked  his  license,  basing  their  action,  as  they  stated,  partly  on  the  affidavit  of 
the  secretary  of  the  Ohio  college  that  no  such  person  as  the  petitioner  had  ever 
been  granted  a  diploma  therefrom.  His  request  for  a  writ  of  certiorari,  by  which 
he  hoped  to  get  the  case  before  the  court  for  review,  was  put  on  the  ground  that 
the  board  acted  without  any  evidence,   in  that  the   affidavit  was   not  taken  on 


467 

notice  to  him.  But  the  Supreme  Court  declares  that  it  could  not  be  said  that 
the  affidavit  was  no  evidence,  [f  the  petitioner  wished  1"  Lnsisl  on  formal  and 
regular  proof,  he  should  have  made  his  appearance.  Ee  chose  to  stay  away,  and 
it  was  not  just  that  he  should  take  the  objection  by  this  extraordinary  writ. 
He  had  his  day  in  court,  and  must  lie  treated  as  having  waived  such  formal 
objections  as  much  as  if  he  had  been  present  and  held  his  peace.  Wherefore,  the 
writ  was  denied. 

INDICTMENT    MUST    STATE    WAY    ONE    HOLDS    HIMSELF    OUT    AS 

PHYSICIAN 

State  v.  Wilson,  7.9  VI.  879 j  65  MI.  88 

1906 

The  Supreme  Court  says  that  it  has  been  decided  by  some  courts,  under 
statutes  prohibiting  the  practice  of  medicine  without  a  license,  and  which  enum- 
erated various  acts  which  should  be  regarded  as  "practicing  medicine,"  that  an 
indictment  charging  the  offense  must  allege  some  one  of  the  nets  so  enumerated. 
In  this  case  the  material  allegation  in  the  indictment,  apparently  following  the 
language  of  the  statute,  was  that  the  respondent  "did  hold  himself  out  to  the 
public  as  a  physician  in  this  state,  without  having  .  .  .  passed  the  examina- 
tion required  by  law,  .  .  .  and  without  having  received  a  license  from  the 
medical  registration  ...  to  practice  as  a  physician."  But  it  is  held  that 
this  was  not  sufficient.  The  court  says  that  there  are  various  ways  in  which 
the  respondent  might  have  held  himself  out  to  the  public  as  a  physician,  and 
he  was  entitled  to  know  in  what  manner  the  state  claimed  he  "held  himself  out" 
before  he  was  compelled  to  plead.  As  the  rule  is  sometimes  stated,  the  allega- 
tion must  descend  far  enough  into  particulars,  and  be  certain  enough  in  its  frame 
of  words  to  give  the  respondent  reasonable  notice  of  what  will  be  produced  against 
him  at  the  trial.  The  court  thinks  that  the  allegation  in  this  indictment  did 
not  fulfill  the  respondent's  right  under  the  constitution  "to  demand  the  cause 
and  nature  of  his  accusation." 


INDICTMENT   NEED   NOT   BE   IN  EXACT   WORDS   OF   STATUTE 

WhitlocJc  v.  Commonwealth,  89  Va.  337;  15  S.  E.  893 

1892 

Whitlock  was  convicted  of  practicing  as  a  physician  without  having  a  license 
therefor,  and  appeals.  Affirmed.  This  was  a  prosecution  against  the  plaintiff  in 
error  in  the  corporation  court  of  the  city  of  Winchester  for  a  violation  of  the 
revenue  laws.  The  indictment  contains  two  counts.  The  first  charges  that  the 
defendant  did  practice  medicine,  for  compensation,  without  having  obtained  a 
license.  The  second  count  is  like  the  first,  except  that  it  omits  the  averment 
that  the  defendant  practiced  for  compensation.  The  defendant  demurred  to  the 
indictment,  and  to  each  count  thereof,  but  the  demurrer  was  overruled,  and  this 
ruling  is  the  subject  of  the  first  assignment  of  error.  It  is  contended  that  the 
demurrer  ought  to  have  been  sustained,  because  the  indictment  does  not  follow 
the  words  of  the  statute  in  setting  out  the  offense,  and  is  uncertain  and  other- 
wise defective.  The  language  of  the  statute  is  that  no  person  shall  practice  as 
a  physician  without  a  license,  and  the  indictment  charges  that  the  defendant 
did  practice  medicine.  The  court  is  of  opinion,  however,  that  the  indictment 
substantially  adheres  to  the  words  of  the  statute,  and  is  sufficient.  It  is  not 
always  necessary  that  in  an  indictment  under  a  statute  the  precise  language  of 
the  statute  shall  be  used  in  describing  the  offense.  It  is  sufficient  if  the  words 
used  are  equivalent  to  those  employed  in  the  statute;  and  to  charge  a  person 
with  practicing  medicine  is  equivalent  to  charging  that  he  practiced  as  a  physi- 
cian. The  indictment  states  all  the  circumstances  which  constitute  the  offense, 
as  set  down  in  the  statute,  to  bring  the  defendant  precisely  within  it,  and  is  good. 
The  second  count  does  not  state  that  the  defendant  practiced  for  compensation, 
but  that  is  immaterial. 


468 

EXEMPTIONS  DO  NOT  MAKE  LAW  DISCRIMINATORY 

Fox  v.  Territory,  2  Wash.  T.  297;  5  Pac.  603 

1884 

The  plaintiff  in  error  was  indicted,  tried,  and  convicted  for  practicing  med- 
icine for  gain.  The  court  does  not  think  the  medical  practice  act  involved  is  in 
any  sense  an  ex  post  facto  law,  or  in  the  nature  of  a  bill  of  attainder.  It  pre- 
scribes qualifications  for  all  persons  proposing  to  practice  medicine  and  sur- 
gery in  the  territory,  and  in  so  doing  excludes  many  from  the  practice  who  might 
otherwise  engage  in  it;  but  this  exclusion  does  not  proceed  upon  the  idea  of 
punishment  for  past  acts.  It  is  claimed  by  -counsel  for  plaintiff  in  error  that 
the  law  is  in  conflict  with  the  fourteenth  amendment  to  the  constitution,  in  that 
it  prescribes  a  standard  of  qualification  to  entitle  one  to  practice  medicine  and 
surgery,  namely,  the  being  a  graduate  of  a  medical  college  or  university,  and  it 
relaxes  the  standard  in  favor  of  those  who  were  engaged  in  the  practice  at  the 
time  of  the  passage  of  the  law.  We  see  a  discrimination  here,  it  is  true,  but 
no  deprivation  of  a  right  secured  by  the  fourteenth  amendment.  It  will  hardly 
be  contended  that  it  is  the  right  of  medical  practitioners,  bearing  diplomas  from 
a  medical  college  or  university,  to  have  excluded  from  the  practice  all  who  are 
not  thus  qualified.  Another  objection  to  the  law,  urged  by  counsel,  is  that  it 
discriminates  between  persons  of  equal  learning  and  skill,  by  permitting  that 
person  to  practice  medicine  and  surgery  who  was  so  engaged  the  day  before  the 
passage  of  the  law,  while  it  denies  the  privilege  to  the  person  who  may  seek  to 
engage  in  the  practice  the  day  after  or  at  any  time  after  the  passage  of  the  law. 
It  appears  to  be  an  answer  to  this  objection  to  say  that  the  law  does  not  deny 
the  privilege  of  practicing  medicine  and  surgery  to  any  one.  Any  citizen  of  the 
territory  may  qualify  himself  in  the  manner  pointed  out  by  the  law,  and  there- 
after may  lawfully  engage  in  the  practice  of  medicine  and  surgery.  The  legisla- 
ture, for  good  and  valid  reasons,  has  exempted  a  particular  class  from  the  neces- 
sity of  having  this  qualification,  but  this  action  does  not  entitle  persons  of 
another  class  to  claim  the  exemption  as  a  legal  right  to  themselves  under  the 
fourteenth  amendment  or  under  any  other  clause  of  the  federal  constitution. 
Another  objection,  founded  upon  the  provision  of  the  law  which  exempts  from 
its  operation  physicians  and  surgeons  in  another  state,  territory,  or  province, 
living  adjacent  to  this  territory,  who  may  cross  the  border  to  attend  patients  in 
the  territory,  is  disposed  of  by  the  same  line  of  reasoning. 


MEDICAL  PRACTICE  ACT  VALID  EXERCISE  OF  POLICE  POWER 

State  v.  Carey,  Jf  Wash.  42Jf;  30  Pac.  729 
1892 

Carey,  convicted  of  practicing  medicine  without  a  license,  appeals  on  the 
ground  (1)  of  the  unconstitutionality  of  the  law  under  which  the  defendant  was 
prosecuted;  and  (2)  that  the  facts  stated  in  the  complaint  do  not  constitute  a 
crime  or  misdemeanor,  in  that  the  offense  sought  to  be  charged  is  not  sufficiently 
described,  and  that  said  complaint  is  too  vague,  indefinite,  and  uncertain. 

It  is  urged  in  support  of  this  position  that  the  law  under  which  this  prose- 
cution is  urged  is  obnoxious  to  section  12  of  article  1  of  the  constitution  of  the 
State  of  Washington,  which  is  as  follows:  "Sec.  12.  No  law  shall  be  passed 
granting  to  any  citizen,  class  of  citizens,  or  corporation  other  than  municipal, 
privileges  or  immunities  which,  upon  the  same  terms,  shall  not  equally  belong 
to  all  citizens  or  corporations."  The  contention  of  the  appellant  is  that  the  law 
under  consideration  is  unequal,  because  ( 1 )  the  governor  alone  furnishes  the 
test  of  the  qualifications  of  the  nine  physicians  comprising  the  returning  board 
by  the  arbitrary  exercise  of  the  appointing  power ;  ( 2 )  that  the  nine  physicians 
comprising  the  board  are  not  subject  to  an  examination  or  to  the  payment  of 
the  examination  fee  of  $10  required  of  applicants  for  examination,  and  that 
consequently  privileges  and  immunities  are  by  this  law  accorded  to  a  certain 
portion  of  that  class  engaged  in  practicing  medicine  and  surgery  in  the  state  of 
\V  ashington  which  are  not  on  the  same  terms   equally  accorded  to  all  citizens 


469 

belonging  to  such  class.  We  think  the  law  in  question  affords  no  substantial 
basis  for  these  objectionss.  From  the  very  necessities  of  the  case,  the  test  of 
the  qualifications  of  the  examining  board  in  the  first  instance  must  arbitrarily 
rest  somewhere.  This  is  true  of  every  examining  board  in  every  department  of" 
the  government,  and  to  deny  the  right  of  the  legally  appointed  tribunal  to  thus 
arbitrarily  exercise  this  discretion  is  practically  to  deny  the  right  of  the  state 
to  enact  and  enforce  the  law.  In  this  instance  the  legislature  has  invested  the 
governor  with  this  power  of  selection.  Then'  mighl  possibly  be  something  in 
the  second  proposition  of  appellant,  if  it  were  conceded  that  his  premises  were 
correct;  but  we  are  unable  to  find  anything  in  the  act  which  warrants  the  con- 
clusion that  the  members  of  the  examining  board  are  exeinpl  from  any  of  the 
burdens  which  are  imposed  upon  other  physicians  who  desire  to  practice  med- 
icine and  surgery  in  the  state.  The  fact  that  a  person  who  practices  medicine 
in  the  state  is  a  member  of  the  board  will  not  release  him  from  the  necessity 
of  obtaining  the  license  and  paying  the  fee  required.  A  majority  of  the  board 
may  grant  the  license,  and  it  can  as  consistently  be  granted  to  a  member  of  the 
board  as  to  any  one  else. 

It  is  also  contended  by  the  appellant  that  the  law  is  in  violation  of  the  con- 
clusion that  the  members  osf  the  examining  board  are  exempt  from  any  of  the 
the  character  of  the  one  in  question  is  founded  upon  the  "police  power"  of  the 
state,  and  the  scope  of  this  power  has  been  the  subject  of  much  controversy, 
and  the  term  has  been  variously  defined  by  courts  and  text-writers.  It  is  defined 
by  the  Supreme  Court  of  Illinois  in  the  case  of  Lake  View  v.  Rose  Hill  Ceme- 
tery, 70  III.,  192,  as  "that  inherent  and  plenary  power  in  the  state  which  enables 
it  to  prohibit  all  things  hurtful  to  the  comfort  and  welfare  of  society."  Many 
definitions  have  been  announced  by  the  courts,  but  the  above,  it  seems  to  us,  is 
so  terse  and  comprehensive  that  we  need  look  no  further  for  a  definition.  Under 
our  form  of  government  especially,  all  the  personal  liberty  possibly  consistent 
with  the  general  welfare  is  conceded  to  the  individual,  and  while,  as  a  general 
proposition,  it  is  doubtless  true  that  any  citizen  has  a  right  to  pursue  any  law- 
ful calling,  yet  in  respect  to  certain  occupations  not  in  themselves  unlawful,  this 
right  is  necessarily  subject  to  legislative  restrictions  from  considerations  of  pub- 
lic policy.  In  the  profession  of  medicine,  as  in  that  of  law,  so  great  is  the  neces- 
sity for  special  qualifications  in  the  practitioner,  and  so  injurious  the  conse- 
quences likely  to  result  from  the  want  of  it,  that  the  power  of  the  legislature 
to  prescribe  such  reasonable  conditions  as  are  calculated  to  exclude  from  the  pro- 
fession those  who  are  unfitted  to  discharge  its  duties  cannot  be  doubted. 

The  practice  of  medicine  and  surgery  is  a  vocation  that  very  nearly  concerns 
the  comfort,  health  and  life  of  every  person  in  the  land.  Physicians  and  sur- 
geons have  committed  to  their  care  the  most  important  interests,  and  it  is  an 
almost  imperious  necessity  that  only  persons  possessing  skill  and  knowledge 
should  be  permitted  to  practice  medicine  and  surgery.  For  centuries  the  law 
has  required  physicians  to  possess  and  exercise  skill  and  learning,  for  it  has 
mulcted  in  damages  those  who  pretend  to  be  physicians  and  surgeons  who  have 
neither  learning  nor  skill.  It  is  therefore  no  new  principle  of  the  law  that  is 
asserted  by  our  statute,  but  if  it  were  it  would  not  condemn  the  statute,  for  the 
statute  is  an  exercise  of  police  power  inherent  in  the  state.  It  is  of  high  impor- 
tance to  the  community  that  health,  limb  and  life  should  not  be  left  to  the  treat- 
ment of  ignorant  pretenders  and  charlatans.  It  is  within  the  power  of  the  legis- 
lature to  enact  such  laws  as  will  protect  the  people  from  ignorant  pretenders, 
and  secure  them  the  services  of  respectable,  skilled  and  learned  men,  although 
it  is  not  within  the  power  of  the  legislature  to  discriminate  in  favor  of  any  par- 
ticular school  of  medicine.  When  intelligent  and  educated  men  differ  in  their 
theories,  the  legislature  has  no  power  to  condemn  the  one,  or  approve  the  other, 
but  it  may  require  learning  and  skill  in  the  school  of  medicine  which  the  physi- 
cian professes  to  practice.  Our  statute  does  not  undertake  to  discriminate  between 
rival  or  different  schools  of  medicine,  nor  can  we  see  that  it  invades  or  abridges 
any  citizen's  constitutional  right.  No  one  is  proscribed  or  prevented  from  prac- 
ticing medicine.  All  that  is  required  of  the  applicant  is  that  he  shall  possess 
the  necessary  qualifications,  and  the   test  of  qualification   is  prescribed  by  the 


470 

law.  That  test  may  not  be  the  best  that  could  have  been  devised;  it  may  be 
exceedingly  imperfect  and  faulty;  and  in  some  respects  we  think  it  is,  as  it  is 
difficult  to  see  how  a  practitioner's  qualifications  can  be  affected  by  the  mere 
accident  of  his  residence  in  the  state  at  the  time  of  the  passage  of  the  law,  or 
why  the  community  should  not  be  protected  from  resident  as  well  as  non-resident 
charlatans  and  quacks;  yet,  conceding  the  right  of  the  legislature  to  legislate 
upon  the  subject,  the  wisdom  of  the  act,  its  reasonableness  or  unreasonableness, 
is  a  question  for  legislative  discretion,  and  not  for  judicial  determination.  The 
court  is  of  the  opinion  that  the  law  is  not  in  conflict  with  any  constitutional 
right,  and  therefore  it  must  be  sustained. 

The  court  then  discusses  the  objection  that  the  facts  stated  in  the  complaint 
do  not  constitute  a  crime  or  misdemeanor.  It  is  argued  by  the  respondent  that 
the  statutory  provisions  are  not  a  definition  of  the  crime,  but  simply  an  enumer- 
ation by  statute  of  probative  facts,  which  need  not  be  alleged  in  the  complaint. 
The  court  holds  that  it  was  the  intent  of  the  legislature  to  define  the  crime  by 
the  use  of  the  language  quoted.  This  is  a  crime  not  known  to  the  common  law, 
— it  is  purely  statutory;  and,  if  the  statute  has  failed  to  define  it,  it  is  not 
defined  at  all,  and  the  defendant  is  called  upon  to  answer  to  an  undefined  crime 
where  no  particular  act  constituting  the  crime  is  charged.  To  meet  this  objec- 
tion it  is  contended  by  the  respondent  that  everybody  knows  what  the  term  "prac- 
ticing medicine"  means.  Every  person  may  know  what  his  particular  idea  of 
practicing  medicine  means,  but  one  person's  idea  as  to  what  it  means  may  differ 
from  another's.  The  court  holds  that  the  indictment  in  this  case  was  defective, 
and  on  this  ground  reverses  the  judgment. 


INSUFFICIENT   PROOF   OF   PRACTICING   MEDICINE 

State  v.  Dunham,  31  Wash.  636;  12  Pac.  459 

1903 

The  Supreme  Court  says  that  the  acts  constituting  the  practice  of  medicine 
charged  in  this  case  were  that  at  a  certain  time  and  place  the  latter  "did  wrong- 
fully and  unlawfully  establish  and  maintain  an  office,  and  advertise  the  title  of 
doctor"  in  a  certain  newspaper.  No  attempt  at  all  was  made  to  prove  that  he 
maintained  an  office,  and  the  only  evidence  introduced  as  to  the  other  fact  was  a 
paper  containing  an  advertisement.  Clearly,  the  court  holds,  there  was  here  no 
proof  of  the  crime  charged,  namely,  the  practicing  of  medicine  without  a  license. 
As  against  the  presumption  of  innocence,  it  could  not  be  presumed  from  the  mere 
fact  that  an  advertisement  appeared  in  a  paper  that  it  was  authorized  by  the 
accused,  nor  would  it  be  presumed  that  he  was  the  persosn  named  in  the  adver- 
tisement, though  the  name  therein  and  his  name  were  the  same. 


LAW  AGAINST   OWNING   OR  MANAGING   OFFICE   UNCONSTITUTIONAL 

State  v.  Brown,  31  Wash.  106;  19  Pac.  638 

1905 

The  Supreme  Court  holds  that  the  police  power  of  the  state  does  not  authorize 
the  enactment  of  a  statute  requiring  examination  by  and  license  from  a  dental 
board  before  one  may  "own,  run,  or  manage"  a  dental  office.  It  says  that  it  is 
solicitude  for  the  physical  well-being  of  the  public,  or  that  portion  that  may 
need  dentistry  work,  which  justifies  that  part  of  the  statute  providing  for  the 
examination  and  licensing  of  those  who  desire  to  "treat  diseases  or  lesions  of  the 
human  teeth  or  jaws,  or  to  correct  malpositions  thereof."  To  perform  such  work 
with  safety  and  with  proper  regard  for  health  and  comfort,  the  operator  must 
possess  technical  knowledge  and  skill  peculiar  to  the  study  and  practice  of  den- 
tistry. Can  the  same  be  said  of  one  desiring  to  own,  run  or  manage  a  dental 
office?     The  court  thinks  not.     To  own  and  run  property,  it  says,  is  a  natural 


471 

right,  and  one  which  may  be  restricted  only  for  reasons  of  public  policy,  clearly 
discernible.  To  hold  this  portion  of  the  statute  valid  would  be  to  make  possible 
conditions  which  were  never  designed  to  exist.  To  illustrate:  Suppose  a  man 
thoroughly  qualified  and  legally  licensed  as  a  dentist  should  <  1  i <*.  leaving  a  per- 
fectly and  completely  equipped  dental  office  to  his  widow,  who  knew  nothing  of 
dentistry  and  was  incapable  of  securing  a  license  By  continuing  to  own  this 
property  any  appreciable  time  she  would  become  liable  to  prosecution  under  this 
part  of  the  statute.  Can  the  police  or  any  other  power  be  constitutionally  invoked 
to  produce  such  a  result?  The  court  is  led  to  believe  not.  Carry  the  illustration 
a  little  further:  The  widow',  not  being  able  to  sell  the  dental  office  to  advantage, 
decides  to  hire  competent  and  legally  licensed  dentists  to  treat  patrons  of  the 
office,  and  undertakes  the  management  herself — paying  bills,  collecting  accounts, 
arranging  credits,  making  appointments,  and  doing  other  acts  necessary  to  the 
supervision  and  control  of  the  business  affairs  of  the  concern.  Then  she  becomes 
a  criminal,  if  this  portion  of  the  statute  have  virtue,  because  she  has  managed  a 
dental  office.  And  yet  it  will  scarcely  be  contended  that  any  of  these  acts  injuri- 
ously affect  "the  health,  good  order,  morals,  peace  or  safety"  of  society,  or  menace 
"the  lives,  limbs,  health,  comfort,  quiet  or  property"'  of  the  patients  treated  in 
such  office.  Many  similar  illustrations  will  readily  occur  to  the  mind  given  to 
the  contemplation  of  the  natural  results  reasonably  to  be  anticipated  under  the 
operation  of  such  a  statute.  Should  the  owner  or  manager  hire  operators  not 
legally  qualified,  or  should  they  participate  in  the  treatment  or  operations  men- 
tioned in  the  other  portion  of  the  statute,  they  would,  of  course,  be  amenable  to 
and  punishable  under  those  provisions.  But  the  court  is  unable  to  say  or  to  per- 
ceive that  the  health,  moral  or  physical  welfare  of  the  public,  or  any  of  the  per- 
sonal or  property  rights  of  its  individuals,  are  endangered  by  the  ownership  and 
management  of  a  dental  office,  so  long  as  those  employed  therein  to  do  the  actual 
dentistry  work  are  qualified  and  licensed  as  by  law  required. 


CONSTITUTIONALITY    AND    APPLICATION    OF    PRACTICE    ACT 

State  v.  Laicson,  J/0  Wash.  !\5o ;  82  Vac.  150 
1905 

The  Constitution  of  the  State  of  Washington  provides  that  "no  act  shall  ever 
be  revised  or  amended  by  mere  reference  to  its  title,  but  the  act  revised  or  sec- 
tion amended  shall  be  set  forth  at  full  length."  In  this  case  it  was  contended 
that  there  was  no  law  in  the  state  of  Washington  authorizing  the  licensing  of 
persons  to  practice  medicine  and  surgery;  that  the  act  of  1890  was  entirely 
superseded  by  the  amendatory  act  of  1901.  The  basis  of  this  contention  was 
that  the  amendatory  act  of  1901  did  not  set  forth  at  full  length  the  sections  of 
the  original  act  which  were  not  amended,  as  it  was  claimed  the  constitution 
required.  But  the  Supreme  Court  of  Washington  says  that,  whatever  support 
this  connection  might  find  in  the  earlier  decisions  of  the  courts  of  Louisiana  and 
Indiana,  it  is  no  longer  considered  as  sound.  And  it  holds  that  the  unamended 
sections  of  the  act  of  1S90  and  the  three  sections  as  amended  by  the  act  of  1901 
are  in  full  force  and  effect  and  constitute  the  law  on  the  subject  under  consid- 
eration. 

The  uncontradicted  testimony  in  this  case  showed  that  the  defendant  prac- 
ticed medicine  as  defined  by  the  statute.  Did  he  have  a  license  so  to  do?  The 
testimony  tending  to  show  that  he  had  no  such  license  was  the  following:  (1) 
The  testimony  of  the  secretary  of  the  state  board  of  medical  examiners  to  the 
effect  that  he  never  obtained  a  license  from  said  board;  (2)  the  testimony  of 
the  county  clerk  of  King  county  to  the  effect  that  no  license  or  certified  copy 
of  a  license  was  of  record  in  his  office,  and  ( 3 )  the  testimony  of  the  county 
auditor  of  King  county  to  the  effect  that  the  defendant's  name  did  not  appear 
as  a  licensed  physician  in  the  records  of  his  office.  The  defendant  contended  that, 
notwithstanding  ail  such  testimony,  he  might  have  been  duly  licensed  in  some 


472 

other  county  in  the  state  prior  to  the  passage  of  the  act  of  1890,  and  such  license 
not  appear  in  any  of  said  offices.  This,  the  Supreme  Court,  which  affirms  a  con- 
viction, says,  was,  no  doubt,  true,  but  the  statute  makes  the  records  of  the  clerk's 
office  prima  facie  evidence  of  the  existence  or  non-existence  of  a  license.  The 
defendant  conceded  this,  but  said  that  the  statute  declared  an  arbitrary  and 
illogical  rule  of  evidence,  and  was,  therefore,  unconstitutional. 

The  court's  answer  is:  Where  a  license  issued  in  any  county  of  a  state  author- 
izes the  prosecution  of  a  business  or  the  practice  of  a  profession  in  any  part  of 
the  state,  the  difficulty  of  proving  that  a  given  person  has  no  license  is  very  great. 
This  fact  has  induced  many  of  the  states  to  enact  laws  imposing  on  the  defendant 
the  burden  of  proving  a  license  in  all  prosecutions  such  as  this,  and  these  statutes 
have  been  declared  constitutional.  If  the  state  can  require  the  defendant  to  jus- 
tify under  his  license  in  the  absence  of  any  proof  whatever,  it  goes  without  saying 
that  it  can  likewise  declare  what  character  of  proof  shall  constitute  prima  facie 
evidence. 


WHEN  MAY  COURT  COMPEL  EXAMINATION  BOARD  TO  ISSUE  LICENSE 

State  v.  Board  of  Dental  Examiners  of  the  State  of  Washington,  38  Wash.  325; 

80  Pac.  5U 

1905 

The  Supreme  Court  says,  that  the  confusion  in  the  discussion  of  the  right  of 
the  courts  to  interfere  with  the  discretion  of  an  examining  board  arises  more  from 
the  inaccurate  terms  which  are  used  by  the  law  writers  than  from  any  inherent 
difficulty  in  the  law  itself.  The  general  rule  is  well  established  that  the  courts 
can  not  review  the  discretion  which  has  by  law  been  vested  exclusively  in  inferior 
tribunals,  and  mandamus  will  therefore  not  lie  to  compel  the  performance  of  acts 
or  duties  which  necessarily  call  for  the  exercise  of  discretion  on  the  part  of  the 
officer  or  board  at  whose  hands  their  performance  is  required,  because  the  state 
has,  as  in  this  instance,  specified  the  officers  on  whose  judgment  on  the  questions 
submitted  to  them  the  state  is  willing  to  rely.  Taking  the  case  at  bar  (where  a 
mandamus  was  sought)  for  an  example,  if  a  record  of  the  examination  had  been 
produced  in  court,  with  the  questions,  answers,  and  credits  given  to  each  question, 
who  would  determine  whether  or  not  a  particular  answer  had  received  a  sufficient 
credit?  Certainly  not  the  jury,  for  they  are  not  presumably  competent  to  pass  a 
proper  judgment  on  such  subjects.  Not  the  judge,  for  his  qualifications  do  not 
embrace,  or  at  least  require,  an  expert  knowledge  of  the  science  of  dentistry. 
Expert  witnesses  could  not  be  properly  permitted  to  testify  for  the  reason  that 
the  state  has  already  designated  and  empowered  experts  to  pass  on  these  ques- 
tions, presumably  by  reason  of  their  recognized  qualifications.  But,  notwith- 
standing this,  it  is  equally  well  established  that  courts  will  compel  by  mandamus 
the  honest  performance  of  official  duty,  and  if,  under  pretense  of  exercising  dis- 
cretion, the  power  is  exercised  with  manifest  injustice,  or  is  grossly  abused,  or 
duty  is  avoided,  the  courts  will  grant  relief.  The  action  of  the  court  must  in 
reality  be  based  on  the  assumption  that  the  inferior  tribunal  has  refused  to  exer- 
cise the  discretion  with  which  it  is  clothed,  because,  if  it  acts  arbitrarily  or  fraud- 
ulently, or  through  unworthy  or  selfish  motives,  or  conspires  against  the  rights 
of  individuals,  under  the  law,  and  therefore  against  the  law  itself,  it  has  not 
strictly,  as  is  frequently  said,  "abused  its  discretion" — a  term  which  is  responsible 
for  some  confusion  of  ideas  on  this  subject — but,  in  contemplation  of  law  it  has 
not  exercised  its  discretion  at  all,  but  has  sought  to  substitute  arbitrary  and 
fraudulent  disposition  and  determination  of  the  question  submitted  for  the  honest 
discretion  demanded  by  the  law.  In  such  cases  the  law  will  by  mandamus  compel 
the  tribunal  to  act  honestly  and  fairly,  or,  in  other  words,  to  exercise  its  discre- 
tion; and,  when  this  distinction  is  kept  in  mind,  the  seeming  difficulties  which 
have  surrounded  this  question,  and  which  have  caused  so  much  discussion,  dis- 
appear. 


473 

NO  TIME  BAR  AGAINST  REVOCATION  OF  LICENSE  AFTER  CONVICTION 
OF  OFFENSE   INVOLVING  MORAL  TURPITUDE 

State  Medical  Examining  Board  v.  Stewart,  Jf6  YYash.  19;  89  Pac.  Ift5 

1907 

The  Supreme  Court  of  Washington  says,  in  the  case  of  State  Medical  Examin- 
ing Board  v.  Stewart,  that  a  complaint  was  filed  with  the  state  medical  board  on 
June  16,  1906,  seeking  to  revoke  the  license  of  the  defendant  to  practice  medicine 
within  the  state.  The  complaint  alleged  that  he  was  guilty  of  unprofessional  and 
dishonorable  conduct,  and  particularly  stated  facts  showing  his  conviction  on 
Sept.  30,  1903,  for  an  offense  involving  moral  turpitude.  The  state  statute  pro- 
vides that  a  license  to  practice  medicine  may  be  revoked  by  the  state  examining 
board  on  complaint  charging  unprofessional  or  dishonorable  conduct,  and  it  is 
provided  by  section  6285,  Pierce's  Code,  that  a  conviction  of  any  offense  involving 
moral  turpitude  shall  constitute  unprofessional  or  dishonorable  conduct.  Section 
6287  provides  for  an  appeal  from  the  board  of  examiners  to  the  Superior  Court 
of  the  county  in  which  was  held  the  last  general  meeting  of  such  board;  and  also 
provides  that  such  appeal  shall  stand  for  trial  anew  in  all  respects  as  ordinary 
civil  actions,  and  like  proceedings  shall  be  had  thereon.  No  time  is  limited 
within  which  such  proceedings  shall  be  commenced.  It  was  argued  here  that, 
because  no  time  is  fixed,  such  actions  must  be  commenced  within  two  years,  under 
the  provision  of  the  state  of  limitations.  But  the  court  does  not  think  that  pro- 
vision applicable  to  this  case. 

The  court  says  that  the  character  of  the  person  at  the  time  the  charge  of 
unprofessional  conduct  is  made  controls  his  right  to  the  license.  A  conviction  of 
any  offense  involving  moral  turpitude  is  made  conclusive  evidence  of  unprofes- 
sional conduct.  It  is  not  contemplated  by  the  statute  that  the  examining  board 
shall  try  the  accused  and  find  him  guilty  of  an  offense  involving  moral  turpitude 
when  there  has  already  been  a  trial  and  conviction.  The  statute,  therefore,  con- 
stitutes a  rule  of  evidence  in  such  cases,  to  which  the  statute  of  limitations  does 
not  apply. 

REASONABLE  CONDITIONS  WILL  NOT  INVALIDATE  STATUTE 

State  ex  rel.  Thompson  v.  Board  of  Dental  Examiners  of  Washington  et  al, 

93  Pac.  515 
1908 

Thompson  made  application  for  a  writ  of  mandamus  to  compel  the  State 
Board  of  Dental  Examiners  to  examine  him  touching  his  qualifications  to  practice 
dentistry  in  the  State  of  Washington,  and  to  further  compel  such  board  to  issue 
to  him  a  license  to  practice  dentistry  in  the  event  that  he  successfully  passes  such 
examination.  The  defendants  interposed  a  demurrer  to  his  affidavit,  which  was 
sustained  by  the  trial  court.  Thereupon  the  relator  declined  to  plead  further, 
and  an  order  of  dismissal  was  entered,  from  which  he  has  appealed. 

Appellant's  only  contention  is  that  the  provision  of  the  statute  requiring  him 
to  present  his  diploma  as  a  condition  precedent  to  taking  the  examination  is 
unconstitutional  and  void.  He  has  alleged  that  he  has  sufficient  skill,  learning, 
and  experience  to  enable  him  to  pass  any  reasonable  or  proper  examination  and 
fit  him  for  the  practice  of  dentistry.  Appellant's  apparent  position  is  that,  while 
a  valid  statute  might  be  enacted  requiring  him  either  to  pass  an  examination  or 
present  a  diploma  from  some  dental  college  in  good  standing,  it  cannot  compel 
him  to  do  both  without  invading  his  constitutional  rights.  In  other  words,  he 
contends  that,  if  he  has,  as  admitted  by  the  demurrer,  sufficient  skill  and  knowl- 
edge to  fit  him  for  the  practice,  and  is  able  and  willing  to  pass  the  examination, 
he  cannot  also  be  required  to  present  a  diploma  to  the  board  as  a  condition  prece- 
dent to  being  permitted  to  take  such  examination.  The  statute  makes  the  same 
requirements  of  all  applicants  for  examination.  No  favored  or  preferred  classes 
are  created  or  recognized.  An  applicant  who  holds  a  diploma  must  also  pass  the 
examination.  Rightful  possession  of  his  diploma  does  not  of  itself  authorize  him 
to  practice,  or  entitle  him  to  a  license.     The  requirement  for  both  diploma  and 


474 

examination  as  a  test  of  knowledge  and  skill  is  not  such  an  unreasonable  or  arbi- 
trary one  as  to  invalidate  the  statute.  The  right  to  determine  what  requirements 
must  be  met  by  an  applicant  is  within  the  exclusive  province  of  the  Legislature. 


MAKING   A    CHARGE    CONSTITUTES   ILLEGAL    PRACTICE 

State  v.  Thompson,  .',8  Wash.  683;  9Jt  Pac.  667 

1908 

The  appellant  was  convicted  of  practicing  dentistry  for  a  fee  without  first 
having  procured  a  license  therefor.  He  appeals  from  a  judgment  imposing  upon 
him  a  fine. 

He  argues  that  the  evidence  was  insufficient  to  show  that  he  practiced  dentistry 
or  that  he  received  a  fee  therefor.  The  evidence  shows  without  dispute  that  the 
appellant  maintained  a  dental  office  in  Seattle,  and  agreed  to  make  a  new  mouth 
plate  for  the  prosecuting  witness  for  the  price  of  $5;  that,  in  order  to  fit  the  plate, 
it  was  necessary  to  extract  a  tooth.  Appellant  extracted  the  tooth,  and  took  an 
impression  for  the  plate,  and  collected  $3  on  account.  Subsequently  the  plate 
was  made,  but  the  prosecuting  witness  did  not  return  for  it.  It  was  conceded 
that  appellant  at  the  time  did  not  have  a  license  authorizing  him  to  practice 
dentistry  in  the  state,  as  required  by  the  dental  act.  Appellant  stated  to  the 
prosecuting  witness  at  the  time  the  tooth  was  extracted  that  he  made  no  charge 
for  extracting  the  same.  These  acts  of  the  appellant  clearly  constituted  the  prac- 
tice of  dentistry  within  the  meaning  of  the  act.  While  appellant  made  no  inde- 
pendent charge  for  extracting  the  tooth,  that  was  a  necessary  part  of  the  work 
in  fitting  the  plate  to  the  mouth,  because  the  plate  could  not  be  fitted  or  the 
impression  taken  without  the  removal  of  the  tooth.  The  charge,  therefore,  cov- 
ered that  as  much  as  any  other  part  of  the  work.  But  the  taking  of  the  impres- 
sion was  itself  practicing  dentistry,  because  that  act  was  for  the  purpose  of  cor- 
recting a  malformation  of  the  jaw  by  inserting  a  tooth  in  place  of  the  one 
removed.     The  evidence  was  clearly  sufficient. 

Appellant  also  argues  that  the  act  is  unconstitutional.  The  court  has  here- 
tofore passed  upon  all  the  qiiestions  presented  here,  and  is  satisfied  with  the 
conclusions  there  reached. 

There  is  no  error  in  the  record,  and  the  judgment  must  therefore  be  affirmed. 


UNLAWFUL   USE   OF   TITLES   BY   "OSTEOPATHIC   AND   MAGNETIC" 
PHYSICIANS   AND   "DRUGLESS"   DOCTORS 

State  v.  Pollman,  51  Wash.  110;  9S  Pac.  SS 

1908 

The  Supreme  Court  affirms  a  conviction  of  the  defendant  of  practicing  med- 
icine without  a  license,  and  says  that  the  defendant  had  maintained  an  office  and 
place  of  business  in  front  of  and  on  the  doors  of  which  he  had  caused  his  name 
to  be  lettered,  with  the  words,  "Physician,"  and  "Dr.."  and  had  otherwise  adver- 
tised a  title  which  tended  to  show  that  he  was  a  lawful  practitioner  of  medicine 
and  surgery  under  the  laws  of  the  State  of  Washington,  when,  in  fact,  he  was 
not  such  a  practitioner.  It  is  competent  for  the  legislature  to  prohibit  acts  of 
this  kind.     Its  purpose  in  so  doing  is  to  protect  the  people  against  deception. 

The  Washington  statute  provides  that  "Any  person  shall  be  deemed  as  prac- 
ticing within  the  meaning  of  this  act  who  shall  have  and  maintain  an  office  or 
place  of  business  with  his  or  her  name  and  the  words  physician  or  surgeon, 
'Doctor,'  'M.D.'  or  'M.B.'  in  public  view,  or  shall  assume  or  advertise  the  title 
of  doctor  or  any  title  which  shall  show  or  shall  tend  to  show  that  the  person 
assuming  or  advertising  the  same  is  a  lawful  practitioner  of  any  of  the  branches 
of  medicine  or  surgery  in  such  a  manner  as  to  convey  the  impression  that  he 
or  she  is  a  practitioner  of  medicine  or  surgery  under  the  laws  of  this  state." 
The  titles  which  the  statute  sets  out  are  those  usually  associated  with  practi- 
tioners of  the  regular  schools  who  treat  diseases  by  the  administration  of  rem- 
edies in  the  nature  of  drugs  and  their  compounds,  rather  than  with  practitioners 


475 

who  treat  solely  by  appeals  to  Divinity,  the  occult,  or  by  "manually  manipulat- 
ing the  limbs,  muscles,  nerves,  and  by  flexing  and  manually  manipulating  the 
joints  of  the  body,"  and  it  is  practitioners  of  the  regular  schools  rather  than 
the  others  that  the  ill  and  infirm  seeking  relief  usually  expect  to  find  when  enter- 
ing a  room  whose  door  has  lettered  on  it  the  name  of  a  person  preceded  by  the 
title,  "Dr.,"  or  followed  by  the  letters  "M.D."  or  "Physician  and  Surgeon." 

The  defendant,  it  was  true,  prefixed  to  the  word,  "Physician"  the  words  "oste- 
opathic and  magnetic"  in  one  instance,  and  the  word  "drugless"  in  another;  but 
these  did  not  make  the  use  of  the  word  lawful.  The  statute  is  a  prohibition 
against  any  use  of  the  word  in  connection  with  announcements  of  the  profession 
or  business  of  a  person  other  than  practitioners  of  medicine  and  surgery  who  have 
passed  the  examination  prescribed  in  the  statute  and  received  the  license  therein 
provided  for,  and  this  prohibition  is  not  evaded  by  the  use  of  qualifying  adjec- 
tives prefixed  to  the  prohibited  words.  The  statute  also  uses  the  word  "doctor," 
instead  of  the  more  common  abbreviation  "Dr.,"  but  it  is  equally  a  prohibition 
against  the  use  of  either.  Its  purpose  being  to  prevent  deception,  the  courts  will 
give  to  it  that  meaning  which  will  most  effectually  accomplish  that  purpose.  It 
was  said,  however,  that  the  part  of  the  statute  here  in  consideration  could  not 
lawfully  be  enacted  under  an  act  entitled,  "An  act  to  regulate  the  practice  of 
medicine  and  surgery  in  the  State  of  Washington,"  etc.,  but  the  court  thinks 
the  title  sufficiently  broad.  To  provide  who  may  lawfully  call  themselves  "Doc- 
tors," "Physicians,"  or  "Surgeons"  is  clearly  within  the  title  of  an  act  entitled, 
"An  act  to  regulate  the  practice  of  medicine  and  surgery." 


SUFFICIENT  EVIDENCE  OF  PRACTICING  WITHOUT  A  LICENSE 

State   v.  Dodson,  54   Wash.  31  j  102  Pac.  872 

1909 

The  Supreme  Court  says,  where  it  affirms  a  conviction  of  practicing  medicine 
without  a  license,  that  it  was  contended  that  under  the  provision  of  the  statute 
the  state  did  not  make  out  a  prima  facie  case  against  the  defendant,  because  it 
did  not  show  that  he  had  not  been  a  practicing  physician  prior  to  the  enactment 
of  the  statute  under  which  he  was  convicted.  But  it  is  held  sufficient  that  the 
state  showed  by  the  clerk  that  the  defendant  had  not  filed  a  license  in  his  office, 
and  that  none  had  been  filed.  The  statute  makes  the  records  of  the  clerk's  office 
prima  facie  evidence  of  the  existence  or  non-existence  of  a  license. 

Again,  the  court  says  that  the  statute  provides  that  "any  person  shall  be 
deemed  as  practicing  medicine  within  the  meaning  of  this  act  who  shall  have  and 
maintain  an  office  or  place  of  business  with  his  or  her  name  and  the  words  physi- 
cian or  surgeon,  "Doctor,"  "M.D.,"  or  "M.B."  in  public  view,  or  shall  assume  or 
advertise  the  title  of  doctor  or  any  title  which  shall  show  or  shall  tend  to  show 
that  the  person  assuming  or  advertising  the  same  is  a  lawful  practitioner  of  any 
of  the  branches  of  medicine  or  surgery  in  such  a  manner  as  to  convey  the  impres- 
sion that  he  or  she  is  a  practitioner  of  medicine  or  surgery  under  the  laws  of  this 
state."  Evidence  to  prove  that  the  defendant  had  done  the  things  prescribed  by 
the  statute  was  offered,  and  it  was  for  the  jury  to  determine  the  weight  of  such 
evidence. 


SAVING    CLAUSE    NECESSARY    FOR    COMPLETION    OF    PROSECUTIONS 
AFTER  REPEAL  OF  LAW 

State  v.  Hanover,  55  Wash.  403;  104  P«c.  624 

1909 

The  Supreme  Court  says  that  the  defendant  was  charged  with  practicing 
medicine  without  a  license,  convicted  and  sentenced  to  pay  a  fine.  The  prosecu- 
tion was  under  the  act  of  1890.  The  information  alleged  that  the  offense  was 
committed  on  Oct.  26,  1908.  The  trial  was  had  in  the  month  of  April,  and  the 
judgment  was  entered  on  May  1,  1909.  But  between  the  date  when  the  offense 
was  charged  to  have  been  committed  and  the  date  of  the  trial,  the  state  Legisla- 


476 

ture  passed  a  new  act  regulating  the  practice  of  medicine  and  surgery,  repealing 
prior  acts,  which  new  act  took  effect  on  its  approval,  namely,  March  18,  1909. 
This  act,  however,  contained  no  saving  clause  for  the  prosecution  of  offenses  com- 
mitted under  the  old  law,  and  therefore  it  is  held  that,  under  well-settled  prin- 
ciples of  law,  there  was  no  authority  at  the  time  of  the  trial  for  the  prosecution 
of  the  defendant  on  the  offense  charged,  and  the  judgment  rendered  against  him 
must  be  reversed.  As  said  by  this  court  in  another  case,  the  repeal  of  a  statute 
pending  a  prosecution  thereunder,  without  any  saving  clause  as  to  such  prosecu- 
tion, will  prevent  its  being  further  prosecuted,  and  this  rule  applies  as  well  after 
judgment  and  sentence,  pending  an  appeal  duly  taken  therefrom,  as  before  the  final 
determination  in  the  trial  court. 


LICENSE  NEED  BE  FILED  IN  COUNTY  OF  RESIDENCE  ONLY 
State  v.  Dechmann,  57  Wash.  690;  107  Pac.  85S 
1910 
In  prosecutions  under  the  statute  of  that  state  for  practicing  medicine  Avith- 
out  a  license,  evidence  that  the  defendant  has  failed  to  file  a  license 
with  the  county  clerk,  as  required,  is  prima  facie  evidence  that  he 
is  not  a  legally  licensed  practitioner.  But,  under  the  law,  the  failure  to  file  the 
license  in  a  county  other  than  the  county  in  which  the  defendant  resides  will 
not  be  proof  of  the  violation  of  the  law  or  the  commission  of  the  crime  charged, 
because  it  is  not  one  of  the  requirements  of  the  statute  that  the  practitioner  shall 
file  the  license  in  counties  other  than  the  one  in  which  he  resides,  even  though  he 
may  be  called  to  another  county  for  the  purpose  of  practicing  his  profession  tem- 
porarily. Hence  a  conviction  cannot  be  sustained  by  evidence  showing  merely 
that  the  defendant  practiced  medicine  in  a  given  county,  and  that  no  license  had 
been  filed  in  such  county,  without  any  proof  that  he  was  at  the  time  a  resident 
of  the  county.  

CONSTRUCTION    OF    MEDICAL   PRACTICE    ACT   AS   TO   PERSONS 
ENTITLED   TO  LICENSES   BY  PRIOR  PRACTICE 

In  re  Christensen  et  al,  109  Pac.  10J/0 
1910 

The  Supreme  Court  of  Washington  affirms  judgments  reversing  decisions  of 
the  Board  of  Medical  Examiners  and  directing  a  license  to  be  issued  to  each  of  the 
applicants,  who  had  been  for  more  than  two  years  prior  to  March  18,  .1909,  the 
date  of  the  approval  of  the  law,  a  resident  of  the  state,  and  had  for  the  same 
period  been  in  continuous  practice,  in  one  locality  in  the  state,  of  his  or  her  respec- 
tive mode  of  treatment. 

This  law,  the  court  says,  purports  to  cover  the  entire  subject  matter  of 
licensing  practitioners  of  medicine  and  other  modes  of  treating  the  sick  or 
afflicted.  It  does  not  purport  to  amend  any  prior  existing  law,  and  expressly 
repeals  all  laws  in  anywise  conflicting  with  its  provisions.  In  section  4  it  pro- 
vides: "Any  person  who  treats  the  sick  or  afflicted  may  register  his  or  her 
diploma  with  the  board  of  medical  examiners,  and  receive  a  license  to  practice  his 
or  her  respective  mode  of  treatment,  by  paying  a  fee  of  $10,  *  *  *  Provided, 
that  he  or  she  show  evidence  satisfactory  to  said  board  that  he  or  she  had  been 
legally  engaged  in  such  practice  prior  to  the  passage  of  this  act,  in  the  state  of 
Washington,  and  is  a  graduate  of  a  legally  incorporated  school  or  college  *  *  *; 
or  by  having  been  in  continuous  practice  in  one  locality  in  this  state  for  the  past 
two  years.  *  *  *  "  Section  6,  which  refers  to  those  licensed  on  examination, 
requires  the  applicant  to  file  "satisfactory  testimonials  of  good  moral  character, 
and  a  diploma  *  *  *  ."  Section  20:  "All  persons  receiving  a  certificate  or 
license  under  this  act  shall  use  no  deception  in  the  use  of  titles  of  his  or  her 
mode  of  treating  the  sick,  but  shall  use  only  such  titles  as  are  designated  by  his 
or  her  diploma;  or  those  not  having  a  diploma  shall  use  only  such  title  as  he  or 
she  holds  license  to  practice.     *     *     *  " 

It  was  contended  in  behalf  of  the  Board  of  Medical  Examiners  that  an  appli- 
cant must,  in  addition  to  showing  two  years'  practice  in  one  locality,  have  a 
diploma  a.nd  register  the  same  with  the  board  before  he  would  be  entitled  to  a 


477 

license  under  the  provisions  of  the  last  clause  above  quoted  from  section  4.  It 
must  be  conceded  that  the  provisions  of  this  law  are  somewhat  involved,  and  that 
the  question  of  its  meaning  is  not  free  from  doubt.  However,  the  court  is  of  the 
opinion  that  one  who  has  been  in  continuous  practice  in  one  locality  in  the  state 
of  Washington  for  two  years  prior  to  the  enactment  of  this  law  is  not  required  to 
furnish  further  evidence  of  his  qualifications  by  a  diploma,  and  that  such  a  person 
would  be  entitled  to  a  license  regardless  of  the  fact  of  his  ever  having  a  diploma. 

By  section  20  it  clearly  appears  that  the  legislature  had  in  mind  that  at  least 
some  of  those  entitled  to  a  license  under  this  law  should  not  be  required  to  show 
their  qualifications  by  diplomas.  It  was  contended  that  the  words  "those  not 
having  a  diploma"  referred  only  to  a  licensee  under  section  G  on  examination, 
who  is  required  to  produce  a  diploma  from  a  medical  school  of  a  certain  standing 
"or  satisfactory  evidence  of  having  possessed  such  diploma."  But  the  court  can- 
not agree  with  that  contention.  It  seems  to  the  court  that  if  a  person  ever  had 
such  a  diploma,  and  is  basing  his  right  to  a  license  on  it,  as  he  must  under  sec- 
tion 6,  he  will  be  governed  in  using  his  title  as  a  practitioner  by  that  which  is 
designated  in  such  diploma,  whether  he  has  physical  possession  of  such  diploma 
at  that  time  or  not.  In  other  words,  if  he  has  or  ever  had  a  diploma,  and  is 
granted  a  license  on  it,  then  its  designation  of  his  title  will  govern,  whether  it 
has  any  present  physical  existence  or  not.  He  is  not  one  of  those  mentioned  in 
section  20  as  "not  having  a  diploma."  The  only  licensees  mentioned  in  this  law 
that  these  words  could  possibly  refer  to  are  those  who  are  entitled  to  licenses 
by  virtue  of  practice  in  one  locality  in  the  state  for  two  years  as  provided  in 
section  4.  It  is  quite  common,  in  laws  regulating  professions  and  vocations  and 
prescribing  qualifications  to  be  possessed  by  those  entering  on  them,  to  exempt 
those  already  engaged  in  them  from  showing  any  qualifications  other  than  the 
fact  that  such  persons  are  already  so  engaged,  or  have  been  so  engaged  for  a 
certain  time.  This  seems  to  have  been  the  policy  pursued  by  the  Washington  ter- 
ritorial and  state  legislatures.  And  it  has  been  held  that  such  a  provision  is  not 
such  a  discrimination  as  violates  any  constitutional  right  of  those  seeking  to 
enter  such  professions  or  vocations. 

It  appeared,  that  some  of  the  applicants  here  wrere  engaged  in  the  practice 
of  medicine  and  surgery  for  the  two  years  prior  to  the  passage  of  this  law  without 
having  a  license  required  by  the  law  as  then  existing.  This,  it  was  contended, 
excluded  such  a  person  from  the  right  to  a  license,  because  he  was  not  legally 
engaged  in  practice  and  therefore  was  not  engaged  in  practice  at  all  within  the 
meaning  of  the  two  years'  practice  clause  of  section  4.  But  it  has  been  noticed 
that  the  law  here  involved  is  a  new  and  independent  act  complete  in  itself,  and 
repeals  all  former  laws  on  the  subject.  That  part  of  section  4  following  the  word 
"provided"  refers  to  two  classes  who  may  receive  licenses.  The  first  are  persons 
who  have  been  "legally  engaged  in  such  practice  prior  to  the  passage  of  this  act." 
The  second  are  those  persons  who  have  been  in  "continuous  practice"  in  one  local- 
ity for  two  years.  It  may  be  difficult  to  see  a  reason  for  the  legislature  exempting 
one  class  from  the  effect  of  their  unlawful  acts,  and  not  the  other;  but  the  use  of 
the  word  "legally"  in  referring  to  one  class,  and  omitting  it  in  referring  to  the 
other,  clearly  indicates  the  legislative  intent  to  give  the  license  privilege  to  the 
second  class,  even  though  they  have  violated  a  previously  existing  license  law. 
The  offense  was  in  any  event  purely  statutory,  merely  a  misdemeanor,  did  not 
involve  moral  turpitude,  and  there  is  nothing  so  extraordinary  in  granting  the 
license  privilege  by  the  legislature  to  those  engaged  in  practice  for  two  years, 
even  though  such  persons  did  thereby  violate  the  then  existing  license  law,  as  to 
suggest  that  the  court  should  attribute  to  the  word  "practice,"  as  here  used 
without  qualification,  any  other  than  its  ordinary  meaning. 


ONLY  LEGAL   PRIOR   PRACTICE   EXCEPTS   PHYSICIAN 

In  re  Harold,  59  Wash.  822;  109  Pac.  1043 

1910 

I.  S.  Harold  applied  to  the  board  of  medical  examiners  for  a  license  to  prac- 
tice medicine  and  surgery,  claiming  to  be  entitled  to  such  license  under  the  law 
of  1909,  relating  to  the  licensing  of  those  engaged  in  practice  at  the  time  of  the 


478 

enactment  of  the  law.  The  board  refused  to  grant  him  a  license,  and  he  appealed 
to  the  superior  court,  •where,  as  the  law  provides,  his  right  to  a  license  was  tried 
de  novo,  resulting  in  findings  and  judgment  affirming  the  decision  of  the  board. 
From  this  judgment  he  lias  appealed. 

The  facts  upon  which  appellant  bases  his  right  to  a  license  are  undisputed, 
and  may  be  briefly  stated  as  follows :  He  became  a  resident  of  the  state  of  Wash- 
ington Jan.  1,  190'9,  having  been  prior  thereto  a  resident  of  the  state  of  Indiana 
and  engaged  in  the  practice  of  medicine  and  surgery  therein.  Since  then,  and 
until,  after  the  enactment  of  this  law,  he  was  engaged  in  the  practice  of  medicine 
and  surgery  in  the  state  of  Washington  without  having  a  license  so  to  do  as 
provided  by  the  then  existing  law.  In  addition  to  showing  such  practice  in  this 
state  he  presented  his  diploma  and  evidence  showing  graduation  from  a  school 
having  the  curriculum  of  study  specified  in  section  4  of  the  law.  He  did  not  offer 
to  submit  to  an  examination  as  to  his  qualifications  to  practice  medicine  and 
surgery  under  the  provisions  of  the  law  relating  to  the  licensing  of  those  who  are 
seeking  to  enter  the  profession,  but  relied  wholly  upon  his  alleged  compliance  with 
the  provisions  of  the  law  relating  to  the  licensing  of  those  so  engaged  at  the  time 
of  its  enactment. 

It  is  contended  in  behalf  of  appellant  that,  by  his  showing  of  graduation  from 
a  school  having  the  required  curriculum  of  study  and  his  practice  in  this  state 
prior  to  the  enactment  of  the  law,  he  has  thereby  complied  with  all  of  its  require- 
ments, relating  to  a  certain  class,  entitling  him  to  a  license;  while  it  is  contended 
in  behalf  of  the  Board  of  Medical  Examiners  that  since  he  was  not  legally  engaged 
in  the  practice  in  this  state  prior  to  the  enactment  of  the  law  he  is  not  entitled 
to  a  license,  except  he  prove  his  qualifications  as  required  by  other  provisions  of 
the  law. 

The  controversy  is  reduced  to  the  question :  Has  appellant  satisfied  the  require- 
ment of  the  law?  It  is  manifest  that  at  the  time  he  was  engaged  in  the  practice 
of  medicine  and  surgery  in  this  state  from  Jan.  1,  1909,  until  the  time  of  the 
enactment  of  this  law  without  having  a  license  so  to  do,  he  was  violating  the  plain 
provisions  of  the  then  existing  law  regulating  the  licensing  of  physicians  and 
surgeons.  This  being  true,  it  needs  no  argument  to  demonstrate  that  he  was  not 
"legally  engaged  in  such  practice  prior  to  the  passage  of  this  act."  The  court  finds 
nothing  in  the  law  giving  to  the  word  "legally"  any  other  than  its  ordinary  mean- 
ing and  concludes  that  within  the  meaning  of  the  law  appellant  was  not  engaged 
in  such  practice  prior  to  the  enactment  of  the  law  as  will  aid  him  in  procuring 
a  license  thereunder. 

The  judgment  is  affirmed. 


POWERS  OF  COURTS  ON  APPEALS  FROM  BOARD  DECISIONS  REFUSING 

LICENSES 

In  re  Littlefield,  112  Vac.  234 
1910 

The  Supreme  Court  of  Washington  determines  the  powers,  under  the  1909- 
statutes  of  that  state,  of  the  courts  on  appeals  from  decisions  of  the  State  Board 
of  Medical  Examiners  refusing  licenses  to  practice  medicine  and  surgery,  and 
affirms  a  judgment  directing  the  board  to  issue  the  license  applied  for  in  that  case. 

The  record,  the  court  says,  showed  that  the  license  was  refused  by  the  board 
principally  for  the  reason  that  the  applicant  did  not  obtain  a  rating  equal  to  60 
per  cent,  on  the  subjects  of  histology,  pathology  and  general  diagnosis,  which 
he  was  required  to  obtain  under  the  statute  before  a  license  could  issue  to  him. 
The  first  contention  on  the  part  of  the  board  was  that  the  court  had  no  jurisdic- 
tion to  hear  this  case;  that  it  could  not  administer  the  provisions  of  the  medical 
act  as  applied  to  appeals  from  others  of  the  board  denying  a  license  after  examina- 
tion, because,  it  was  asserted,  it  is  familiar  law  that,  if  the  court  cannot  admin- 
ister the  law  on  a  subject  brought  before  it  by  virtue  of  the  appellate  statute,  the- 
court  has  no  jurisdiction,  to  sustain  which  announcement  of  the  law  many  cases 
were  cited.  But  this  was  assuming  the  very  question  at  issue.  It  seems  to  the' 
Supreme  Court  that  under  the  statute  the  court  has  the  right  to  administer  the- 


479 

provisions  of  the  medical  act,  for  the  statute  specially  provides  for  an  appeal  from 
the  decisions  of  the  hoard.  Section  13  of  the  act  provides  that,  "In  any  case  of 
the  refusal  or  revocation  of  a  license  by  the  said  board  under  the  provisions  of 

this  act,  the  applicant  whose  application  shall  lie  so  refused,  and  the  licentiate 
whose  license  shall  be  so  revoked  by  said  board,  shall  have  the  right  to  appeal 
from  the  decision  so  refusing  or  revoking  such  license  within  thirty  days  after 
the  filing  of  such  decision  *  *  *  to  the  superior  court,"  etc.  And  provision 
is  made  for  an  appeal  from  the  decision  of  the  Superior  Court  to  the  Supreme 
Court. 

It  was  contended  that,  if  this  statute  was  to  he  given  force  at  all,  it  must  be 
construed  to  the  effect  that  the  appeal  is  not  from  the  facts  in  the  case  or  the 
merits  of  the  case,  so  far  as  the  examination  is  concerned,  but  only  for  the  pur- 
pose of  having  determined  any  questions  of  law  arising  on  the  examination  or  in 
connection  with  the  same.  But  the  statute  is  a  general  one,  and  confers  the  gen- 
eral right  without  any  limitation  of  this  kind.  So  far  as  the  statute  itself  is  con- 
cerned, it  does  not  remove  from  the  operation  of  the  appeal  questions  of  fact,  any 
more  than  it  does  questions  of  law. 

But  it  was  insisted  that  it  must  he  construed  with  reference  to  the  asserted 
fact  that  it  would  be  a  travesty  for  the  superior  court  to  undertake  to  pass  on  the 
qualifications  of  applicants  to  practice  medicine;  that  it  would  resolve  itself 
simply  into  the  hearing  of  expert  testimony  on  questions  brought  before  the  court. 
Difficulties  of  this  kind  are  presented  in  the  trials  of  many  cases.  A  common 
instance  is  where  a  defense  is  based  on  the  alleged  insanity  of  a  defendant  in  a 
criminal  action.  The  testimony  of  alienists  and  other  scientists  is  the  controlling 
testimony  in  the  case.  The  legislature  evidently  was  not  willing  to  leave  the 
exclusive  and  final  determination  of  this  question  to  the  discretion  of  the  examin- 
ing board,  but  evidently  thought  that  justice  and  public  policy  demanded  that 
there  should  be  a  review  of  the  action  of  this  tribunal. 

It  is  true,  there  are  some  inconsistencies  in  the  act;  one  of  which  is  the  fact 
mentioned  by  the  board,  that  there  may  be  an  oral  examination  which  it  would 
not  be  possible  to  transmit  in  the  record.  But  that  it  was  intended  by  the  legis- 
lature that  the  evidence  generally  should  be  transmitted  to  the  Superior  Court  is 
evident  from  the  provisions  of  the  statute,  for  the  law  requires  that  the  secretary 
shall  within  ten  days  after  the  service  of  such  notice  of  appeal,  transmit  to  the 
clerk  of  the  Superior  Court  to  which  such  appeal  is  taken,  a  certified  copy,  under 
tne  seal  of  said  board,  of  the  decision  of  said  board,  and  the  grounds  thereof  in 
the  case  of  the  refusal  of  the  license;  that  the  clerk  of  the  court  shall  docket 
such  appeal  cases,  and  that  they  shall  stand  for  trial  in  all  respects  as  ordinary 
civil  actions,  and  like  proceedings  be  had  thereon.  It  also  provides  that  on  said 
appeals  said  causes  shall  be  tried  de  novo  (anew),  which  excludes  the  idea 
advanced  that  only  questions  of  law  shall  be  passed  on  hy  the  Superior  Court. 
It  provides  that  the  examination  papers  shall  form  a  part  of  the  records  of  the 
board,  and  shall  be  kept  on  file  by  the  secretary  for  a  period  of  one  year  after 
each  examination.  All  these  and  other  provisions  of  the  statute  tend  to  show 
that  the  preservation  of  such  records  is  in  the  interest  of  appeal. 

Again,  it  was  contended  that,  if  the  statute  is  to  he  literally  construed,  the 
proper  procedure  was  not  followed  in  this  case,  for  the  court  only  passed  on  the 
question  in  the  main  as  to  whether  the  applicant  had  been  properly  rated  in  his 
examination  on  the  subjects  of  histology,  pathology  and  general  diagnosis,  Avhile 
the  other  subjects  on  which  he  was  examined  were  not  examined  by  the  Superior 
Court;  that  a  trial  de  novo  is  a  trial  anew,  and  that  a  trial  anew  means  a  trial 
of  all  questions  that  were  involved  in  the  case  below.  But  it  seems  to  the  Supreme 
Court  that  this  is  not  a  broad  view  of  this  statute.  Undoubtedly  a  trial  de  novo 
does  mean,  and  is  generally  understood  to  mean,  a  trial  anew;  but  it  means  anew, 
of  course,  only  as  to  the  questions  in  issue.  In  this  case,  so  far  as  the  applicant 
was  concerned,  he  was  satisfied  with  the  rating  he  received  on  the  other  subjects 
of  examination,  and  there  was  no  objection  made  to  them  by  the  board,  so  that 
they  were  really>not  in  issue  in  the  case,  and  the  case  was  tried  de  novo  so  far  as 
the  issues  were  concerned. 

Finding  no  reversible  error,  the  judgment  directing  the  issuance  of  a  license  is 
affirmed. 


480 

REGULATION   OF   THE   PRACTICE   OF   MEDICINE   NOT   INTERFERENCE 
WITH  VESTED   RIGHTS 

State  v.  Dent,  25  W.  Va.  1 

1884 

The  defendant  was  indicted  for  practicing  medicine  without  a  license  and 
moved  to  quash  the  indictment  on  the  ground  that  the  act  of  18S2  was  unconsti- 
tutional. The  court  overruled  the  motion  and  the  defendant  was  found  guilty. 
He  then  appealed  to  the  Supreme  Court,  claiming  that  the  medical  practice  act 
was  unconstitutional  so  far  as  it  interfered  with  the  vested  rights  of  the  defend- 
ant to  practice  medicine.  The  constitutionality  of  the  medical  practice  act  was 
the  only  question  before  the  court.  The  court  says  that  there  can  be  no  doubt 
that  the  legislature  of  this  and  every  other  state  should  permit  the  utmost  free- 
dom of  action  consistent  with  public  welfare  and  ought  not  to  impose  any  restraint 
which  the  paramount  interest  of  the  community  did  not  demand,  but  that  the 
legislature  can  by  law  legitimately  restrain  the  action  or  conduct  of  any  indi- 
vidual citizen  by  a  general  law  applicable  alike  to  all  when  such  restraint  is 
imposed  for  the  purpose  of  promoting  the  comfort,  the  health  or  the  prosperity 
of  the  community  at  large.  Any  state  has  a  right,  under  its  general  police  power, 
to  pass  laws  placing  individuals  under  restraint  in  the  exercise  of  any  business, 
calling  or  profession.  This  power  has  been  universally  recognized  and  has  been 
held  by  the  courts  to  be  constitutional  and  valid.  In  a  great  variety  of  cases 
states  have  required  licenses  before  a  citizen  could  engage  in  certain  businesses 
or  professions  when  from  the  character  of  the  business  or  profession  the  public 
was  liable  to  be  imposed  upon  unless  the  individual  citizen  was  placed  under 
restraint.  The  court  reviews  the  law  regulating  bakers,  liquor  dealers,  lawyers 
and  other  businesses  and  professions,  and  says  that  since  it  is  obvious  that  the 
doctor  requires  a  special  education  to  qualify  him  to  practice  and  since  the  com- 
munity was  incompetent  to  judge  of  his  qualifications  and  is  liable  to  be  imposed 
upon  by  imposters  and  quacks,  the  state  has  required  that  no  one  should  be 
allowed  to  practice  medicine  who  has  not  been  first  examined  by  some  body,  per- 
son or  persons,  as  to  his  qualifications.  In  previous  questions  in  which  the  right 
of  the  state  to  regulate  the  practice  of  medicine  was  involved,  no  question  as  to 
the  constitutional  right  of  the  legislature  to  pass  such  an  act  was  raised.  The 
court  reviews  the  medical  practice  acts  of  different  states  and  Supreme  Court 
decisions  affecting  them  and  holds  that  both  on  reason  and  on  authority  the  court 
cannot  do  otherwise  than  to  regard  all  the  provisions  in  the  act  of  1882  as  con- 
stitutional and  valid.  The  court  is  surprised  to  find  that  such  laws  have  ever 
been  claimed  to  be  special  acts.  All  men  have  a  right  to  the  means  of  acquiring 
property  but  the  means  used  must  be  lawful  means.  One  cannot  acquire  prop- 
erty by  stealth  or  robbery.  In  so  doing  he  infringes  on  the  rights  of  others. 
One  cannot  have  a  right  to  acquire  property  by  the  practice  of  medicine  if  he 
has  no  qualifications  to  practice  medicine,  since  in  attempting  to  do  so  he  destroys 
the  health  of  others  in  violation  of  the  law.  A  legislature  has  a  right  to  declare 
that  one  shall  not  acquire  property  by  the  practice  of  medicine  unless  he  pos- 
sess the  requisite  qualifications  and  can  thus  assure  the  community  that  he  will 
not  destroy  the  health  of  others.  The  legislature  in  declaring  what  shall  be  the 
qualifications  of  a  person  engaging  in  the  practice  of  medicine  does  not  violate 
the  bill  of  rights.  The  courts  have  no  right  to  decide  whether  the  legislature 
has  acted  wisely  in  determining  the  requisite  qualifications  or  has  adopted  the 
wisest  method  of  determining  whether  such  qualifications  are  possessed  by  one 
who  wishes  to  practice  medicine.  This  is  a  purely  legislative  question.  The 
arguments  made  against  the  law  should  be  addressed  to  the  legislature  and  not 
to  the  courts.  While  the  law  remains  in  force  it  must  be  enforced  by  the  courts. 
Judgment  affirmed. 

Judgment  affirmed. 


481 

WHAT    CONSTITUTES    AN    ITINERANT    VENDOR 

State  v.  Ragland,  SI  W.  Va.   )■'.',;  7  8.  E.   ','.', 

1888 

J.  B.  Ragland  was  indicted  as  an  itinerant  physician  am!  vendor  of  drugs, 
etc.,  and  found  guilty  of  vending  drugs  without  a  license.  The  first  '-nor  assigned 
is  overruling  the  demurer  to  the  indictment.  The  indictment  above  set  forth 
was  found  under  section  14,  chapter  150,  page  sin.  Amended  Code.  The  section 
is  as  follows:  "Any  itinerant  physician,  desiring  to  practice  medicine  in  this 
state,  or  any  itinerant  vendor  of  any  drug,  nostrum,  ointment,  or  appliance  of 
any  kind,  intended  for  the  treatment  of  disease,  or  injuries,  or  who  shall  by 
writing  or  printing,  or  in  any  other  method,  publicly  profess  to  cure  or  treat 
diseases,  injuries  or  deformities,  by  any  drug,  nostrum,  manipulation,  or  other 
expedient,  shall,  before  doing  so,  pay  to  the  sheriff  of  every  county  in  which  he 
desires  to  practice  a  special  tax  of  $50  for  each  month,  or  fraction  of  a  month, 
he  shall  so  practice  in  such  county,  and  take  his  receipt  in  duplicate  therefor. 
He  shall  present  said  receipts  to  the  clerk  of  the  county  court  of  such  county, 
who  shall  file  and  preserve  one  of  them  in  his  office,  and  shall  endorse  on  the 
other  the  words,  "A  duplicate  of  this  receipt  has  been  filed  in  my  office."  and 
sign  the  same;  and  if  any  such  physician  or  vendor  of  patent  medicines  shall 
practice,  or  attempt  to  practice,  in  any  such  county,  without  having  paid  such 
tax,  and  filed  such  receipt  with  the  clerk  of  the  county  court,  and  obtained  his 
indorsement  on  the  other  as  aforesaid,  or  if  he  shall  practice,  or  attempt  to  prac- 
tice, for  a  longer  time  than  that  for  which  he  has  paid  such  tax  as  aforesaid, 
he  shall  be  guilty  of  a  misdemeanor,  and  shall  be  fined  not  less  than  one  hun- 
dred nor  more  than  five  hundred  dollars.  Any  person  who  shall  travel  from 
place  to  place,  and  by  writing,  printing,  or  otherwise,  publicly  profess  to  treat 
or  cure  diseases,  injuries  or  deformities,  shall  he  held  and  deemed  to  be  an  itin- 
erant physician,  and  subject  to  the  taxes,  fines  and  penalties  prescribed  in  this 
section."  This  is  a  very  crudely  drawn  statute.  Its  provisions  are  by  no  means 
clear,  but  we  think  we  understand  Avhat  was  intended  by  the  statute.  It  is  clearly 
intended  to  prevent  itinerant  physicians  from  going  from  county  to  county  in 
the  state,  and  practicing  medicine,  without  they  should  pay  the  heavy  tax  pre- 
scribed in  each  county,  which  undoubtedly  was  intended  to  prohibit  such  prac- 
tice. It  was  also  intended  to  prevent  any  one,  whether  a  physician  or  not,  from 
traveling  from  county  to  county,  vending  drugs,  nostrums,  ointments,  or  appli- 
ances of  any  kind  intended  for  the  treatment  of  diseases,  or  injuries,  unless  the 
special  tax  were  paid,  or  to  prevent  any  one  who  should  by  writing  or  printing, 
or  in  any  other  method,  publicly  profess  to  cure  or  treat  diseases,  injuries  or 
deformities  by  any  drug,  nostrum,  manipulation,  or  other  expedient,  from  doing 
so  until  he  should  pay  the  special  tax  imposed.  Therefore  it  seems  the  statute 
was  intended  to  reach  the  itinerant  physician,  the  itinerant  vendor  of  drugs, 
etc.;  and  any  one,  physician  or  not,  who  shall,  by  writing  or  printing,  or  in  any 
other  method,  publicly  profess  to  cure  or  treat  diseases,  injuries  and  deformities, 
by  any  drug,  nostrum,  manipulation,  or  other  expedient,  and  practiced  what  he 
professed  to  do.  By  this  statute  any  one  and  all  persons  are  prohibited  from 
doing  anything  mentioned  therein,  or  pertaining  to  either  of  the  three  classes, 
without  first  paying  the  special  tax  prescribed.  This  indictment  in  one  count 
charges  the  defendant  with  doing  all  three  of  the  things  prohibited  without  first 
paying  the  special  tax. 

After  discussing  the  form  of  the  indictment  which  the  court  sustains,  the 
court  then  considers  the  evidence,  which  showed  that  the  defendant  sold  a  bottle 
of  medicine  known  as  "Raglands  Lightning  Relief,"  which  he  represented  to  be 
his  own  preparation,  good  for  and  would  cure  certain  diseases,  and  that  the  med- 
icine was  patented.  The  printed  matter  with  the  bottle  stated  that  "the  public 
are  most  respectfully  referred  to  the  following  certificates  from  gentlemen  well 
known  in  this  city,  who  testify,  from  actual  experience,  to  the  efficacy  of  this 
most  excellent  and  reliable  preparation."     Then  follows  a  number  of  testimonials 


482 

from  persons  in  Mississippi,  Tennessee  and  Kentucky,  telling  of  the  wonderful 
cures  effected  by  the  medicine.  The  defendant  claimed  that  he  was  not  an  itin- 
erant physician,  practicing  or  attempting  to  practice  medicine  in  this  state;  that, 
on  the  occasion  of  the  sale  of  the  bottle  of  medicine  before  mentioned,  he  pub- 
licly and  distinctly  announced  that  he  was  not  pretending  to  treat  or  cure  dis- 
eases, nor  in  any  manner  to  practice  medicine,  but  simply  to  introduce  and  sell 
his  medicine,  the  same  being  his  own  preparation,  and  being  patent  or  proprie- 
tary medicine,  under  the  laws  of  the  United  States;  and  that  he  had  on  the 
occasion  of  such  sale,  as  well  as  all  other  occasions,  in  offering  it  for  sale, 
announced  that  he  would  not  treat  diseases  in  any  manner  whatever,  and  that 
the  virtue  of  the  remedy  was  in  the  medicine  itself,  and  not  in  him,  the  defend- 
ant; that  any  one  else  could  sell  such  medicine  as  well  as  he  himself  could.  The 
evidence  of  the  printed  matter  on  the  bottle  when  sold  was  proper.  From  all 
the  evidence,  the  court  was  certainly  justified  in  finding  the  defendant  an  itin- 
erant vendor  of  a  drug.  The  finding  was  justified  by  the  evidence,  and  the 
motion  for  a  new  trial  was  properly  overruled.  The  indictment  being  good,  the 
motion  in  arrest  of  judgment  was  properly  overruled.  There  is  no  error  in  the 
judgment,  and  it  is  affirmed. 


TO  PRESCRIBE  AS  A  PHYSICIAN  DEFINED 

In  re  Bruendl's  Will,  102  Wis.  Jt5 ;  18  N.  W.  169 

1899 

Appeal  from  Circuit  Court,  Ozaukee  county;  John  J.  Dick,  Judge.  A  peti- 
tion for  probate  of  the  will  of  Maria  Bruendl,  deceased,  was  contested  and,  from 
a  judgment  admitting  the  will  to  probate,  contestants  appeal.  Two  of  the  wit- 
nesses were  physicians,  partners,  who  made  an  examination  of  the  deceased  about 
four  months  before  she  made  her  will.  The  lower  court  ruled  that  their  testi- 
mony was  privileged.  The  Supreme  Court,  in  overruling  this  decision,  discusses 
the  meaning  of  the  word  "prescribe"  as  follows:  The  seal  placed  on  the  lips  of 
the  physician  only  relates  to  "information  necessary  to  enable  him  to  prescribe 
for  such  patient  as  a  physician."  The  tendency  of  all  courts  has  been,  and  should 
be,  towards  liberal  construction  of  these  words  to  effectuate  the  purpose  of  the 
statute.  Thus,  it  has  been  held  that  the  word  "necessary"  should  not  be  so 
restricted  as  to  permit  testimony  of  statements  or  information,  in  good  faith 
asked  for  or  given  to  enable  intelligent  treatment,  although  it  may  appear  that 
the  physician  might  have  diagnosed  the  disease  and  prescribed  for  it  without 
certain  of  the  information,  so  that  it  was  not  strictly  necessary.  So,  also,  the 
word  "prescribe"  is  not  to  be  used  in  its  most  limited  sense  of  writing  an  order 
upon  an  apothecary  for  specific  drugs,  but  should  be  given  as  liberal  and  enlarged 
an  effect  as  the  word  itself  will  bear  in  the  connection  found. 

Applying  such  rule,  it  is  nevertheless  apparent  that  the  word  "prescribe," 
when  used  as  applicable  to  physicians,  embodies  the  purpose  of  cure,  remedy,  or 
alleviation.  The  word  means  "to  advise,  appoint,  or  designate  as  a  remedy  for 
disease."  We  think,  therefore,  that  the  purpose  to  cure  or  alleviate  is  an  essen- 
tial element  in  the  meaning  of  the  words  "to  prescribe  as  a  physician,"  as  used 
in  this  statute,  and  that  the  prohibition  against  disclosing  information  only 
applies  when  such  purpose  is  present.  It  may  be  contended,  not  without  force, 
that  there  is  the  same  reason  for  confidence  when  the  examination  is  only  to 
ascertain  whether  a  certain  disease  exists,  without  any  purpose  that  the  physi- 
cian shall  attempt  any  prescription  or  advice  for  cure;  but  the  legislature  has 
not  seen  fit  to  so  declare,  and  such  a  case  is  as  it  was  before  the  statute.  In 
the  present  case,  the  purpose  of  attempting  anything  remedial  was  wholly  want- 
ing in  the  interview  between  the  medical  witnesses  and  the  deceased.  The  ques- 
tion was  not  whether  resumption  of  control  over  her  property  would  or  would  not 
be  beneficial  to  her  physically  or  mentally,  but  whether  her  mental  condition  was 
such  that  the  county  court  would  be  likely  to  restore  such  control  to  her.  Advice, 
if  any,  was  sought,  not  with  reference  to  treatment  of  any  disease,  but  as  to 
whether  to  make  an  application  to  the  court. 


483 

REQUIREMENT  OF  AN  EXAMINATION  REASONABLE 

Stale  ex  rel.  Kellogg  v.  Currans  et  al.  Ill  Wis.  '/■.'/;  87  V.  W.  -"(if;  56  L.  I'.  1 .  '.'•'. 

1901 

Kellogg  complained  that  ho  was  refused  a  license  to  practice  medicine  in 
Wisconsin  except  upon  the  condition  of  passing  an  examination  before  a  medical 
hoard  created  therefor,  and  paying  a  fee  which  must  be  considered  as  but  com- 
pensation for  the  service  of  holding  that  examination.  It  appears  that  he  matric- 
ulated in  1S07,  and  took  one  course  of  six  months  at  a  reputable  medical  college 
of  Wisconsin,  and  then  completed  his  course  at  a  reputable  medical  college  located 
in  Chicago.  As  the  law  was  in  Wisconsin  until  its  amendment  in  1901,  lie  would 
have  been  entitled  to  a  license  to  commence  practice  cither  on  the  diploma  he 
obtained,  or  upon  passing  examination.  "But  the  amendment  makes  both  diploma 
and  examination  prerequisite  to  license  to  beginners,  with  proviso  that  "any 
student  who  is  now  matriculated  in  any  medical  college  of  this  state  which 
requires  [specified  courses  of  study],  shall,  on  presentation  of  his  diploma  from 
such  medical  college  and  on  payment  of  the  fees  specified  in  this  act,  be  admitted 
to  practice  without  further  examination."  "The  fee  for  such  examination  shall 
be  fixed  by  the  board,  but  shall  not  exceed  $10,  and  $5  additional  for  the  cer- 
tificate if  issued."  He  strenuously  attacked  the  validity  of  this  statute.  But 
the  Supreme  Court  of  Wisconsin  does  not  think  that  it  infringes  either  that  pro- 
vision of  the  federal  constitution  which  provides  that  the  citizens  of  each  state 
shall  be  entitled  to  all  the  privileges  and  immunities  of  citizens  in  the  several 
states,  or  the  one  which  prohibits  any  state  to  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United  States.  Nor 
does  it  consider  that  it  violates  the  provision  that  no  state  "shall  deprive  any 
person  of  life,  liberty,  or  property,  without  due  process  of  law,  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the  laws."  It  declares  that 
there  can  be  no  doubt  that  it  is  within  the  proper  power  of  the  legislature  to 
provide  that  some  people  may  and  some  may  not  practice  medicine,  provided 
that  the  characteristics  and  conditions  distinguishing  the  former  class  from  the 
latter  are  of  a  kind  tending  to  make  their  exercise  of  that  profession  more  bene- 
ficial or  less  perilous  to  the  community  than  the  class  excluded.  The  reason- 
ableness of  a  requirement  that  one  establish  his  educational  qualifications  by  sub- 
mitting to  an  examination,  it  continues,  is  one  which  pertains  directly  to  one  of 
the  characteristics  which  should  distinguish  those  permitted  to  practice  medicine 
from  those  not  permitted.  As  to  the  statute  making  a  class  of  those  who  should 
obtain  the  education  afforded  by  the  then  existing  medical  colleges  in  the  state 
of  a  specified  standard,  it  asks:  May  not  the  legislature  of  1901,  upon  evidence 
or  investigation,  have  been  convinced  that  such  colleges  could  be  trusted  to  give 
education  to  their  graduates  to  make  them  safe  practitioners,  while  they  could 
not  be  so  satisfied  as  to  all  colleges  outside  the,  state?  The  character  of  the  men 
conducting  the  former  class,  the  opportunity  and  right  of  the  legislature  to  con- 
trol and  to  prevent  deterioration,  the  special  applicability  of  the  instruction  to 
the  diseases  or  phases  of  diseases  characteristic  of  Wisconsin — might  not  con- 
siderations such  as  these  have  weight  with  honest  and  reasonable  minds,  and 
lead  them  to  deem  safer  the  graduates  of  such  institutions,  as  a  class,  then  those 
of  all  other  colleges,  as  to  the  great  majority  of  which  the  legislature  could 
neither  gain  knowledge  nor  exercise  any  control?  Wherefore,  the  court  holds 
the  act  within  the  police  power  of  the  state.  And  it  adds,  in  closing  its  opinion: 
"The  fact,  if  it  were  a  fact,  that  less  educational  requirements  are  demanded 
from  osteopaths  as  preliminary  to  an  examination  by  the  board,  in  no  wise 
affects  the  relator,  whose  qualifications  for  admission  are,  as  he  alleges  in  his 
relation,  all  conceded,  except  the  passing  of  the  examination.  The  question 
whether  the  requirement  of  a  diploma  is  an  unconstitutional  one,  as  discriminat- 
ing against  those  who  by  some  other  method  of  study  have  acquired  equal  educa- 
tion, is  not  open  to  the  relator,  who  confessedly  has  his  diploma.  We  cannot 
set  aside  the  acts  of  the  legislature  at  the  suit  of  one  who,  suffering  no  wrong 
himself,  merely  assumes  to  champion  the  wrongs  of  others." 


484 

COMPLAINT  DID  NOT  DESCRIBE  STATUTORY  OFFENSE 
Schaeffer  v.  State,  113  Wis.  595;  89  N.  W.  481 
1902 
The  Supreme  Court  says  that  the  statutes  in  relation  to  persons  practicing 
medicine  and  surgery  in  that  state  are  in  considerable  confusion.  Nor  does  it 
attempt  to  untangle  them  in  this  case.  This  was  a  prosecution  under  the  law 
of  1898.  The  first  section  mentioned  provides,  in  substance,  that  no  person  prac- 
ticing physic  or  surgery  shall  have  the  right  to  collect  fees  for  his  services  or 
testify  in  a  professional  capacity  in  any  case  "unless  he,  before  the  20th  day  of 
April,  1897,  received  a  diploma  from  some  incorporated  medical  society  or  col- 
lege, or  shall  since  said  date  have  received  a  license  from  the  state  board  of  med- 
ical examiners."  Section  4603a  provides  that  any  person  prohibited  by  section 
1436  from  testifying  in  his  professional  capacity  as  a  physician  or  surgeon,  who 
shall  assume  the  title  of  doctor  under  circumstances  detailed  therein,  shall  be 
punished  by  fine  or  imprisonment,  and  the  burden  of  showing  his  right  to  use 
any  such  title  shall  be  upon  the  accused.  The  complaint  in  this  case  charged 
that  the  party  in  question  unlawfully  used  the  title  of  doctor  without  having 
obtained  a  license  from  the  state  board  of  examiners.  The  Supreme  Court  holds 
that  this  did  not  describe  an  offense  under  the  statutes.  It  says  that  the  offense 
consists  in  assuming  the  title  by  one  not  having  a  diploma  or  license.  The 
offense  charged  was  that  of  having  no  license.  Certainly  this  did  not  describe 
the  offense  prescribed  in  the  statute. 


BOARD    MAY    PASS    ON    REPUTABILITY    OF    COLLEGE 

State  v.  Chittenden,  127  Wis.  468;  107  N.  W.  500 
1906 
The  meaning  of  the  word  "reputable"  as  used  in  the  law  regulating  the  prac- 
tice of  dentistry  is,  "worthy  of  good  repute";  it  relates  to  real  character,  not  to 
mere  reputation  in  that  regard.  Reputability,  as  the  term  is  used  in  the  dental 
law,  relates  to  that  which  will  enable  the  college  to  do  good  work  and  the  actual 
accomplishment  thereof;  it  is  separate  and  distinct  from  other  requisites  as  to 
a  diploma  being  a  passport  to  the  favor  of  the  official  board  as  regards  the  issu- 
ance of  a  license.  It  may  or  may  not  exist,  and  all  the  other  requisites  be  pres- 
ent. It  is  proper,  in  administering  the  law  regulating  the  practice  of  dentistry, 
for  the  official  board,  of  its  own  motion,  or  on  petition  of  a  college  of  which  it 
has  jurisdiction,  to  adjudicate  its  status  as  regards  reputability.  The  adjudi- 
cated status  of  a  college  is  presumed  to  continue  till  the  presumption  shall  have 
been  reasonably  rebutted,  under  the  general  rule  that  "when  the  existence  of  a 
person,  a  personal  relation  or  a  state  of  things  is  once  established  by  proof,  the 
law  presumes  that  the  person,  relation  or  state  of  things  continues  to  exist  as 
before  until  the  contrary  is  shown,  or  until  a  different  presumption  is  raised 
from  the  nature  of  the  subject  in  question." 


POWER   TO  REVOKE   CERTIFICATE    FOR   FRAUD   ANTEDATING  LAW 

State  v.  Schaeffer,  129  Wis.  459;  189  N.  W.>522 

1906 

This  was  an  action  commenced  Dec.  21,  1905,  to  revoke  and  annul  the  cer- 
tificate of  registration  issued  to  the  defendant  by  the  Wisconsin  Board  of  Med- 
ical Examiners  Sept.  25,  1899,  pursuant  to  chapter  87  of  the  Laws  of  1899.  The 
action  was  based  on  a  verified  complaint  in  writing  made  by  the  secretary  of 
said  board,  charging  the  defendant  with  having  procured  such  certificate  by 
fraud  and  perjury  and  through  error,  as  prescribed  by  chapter  422  of  the  Laws 
of  1905.  This  was  met  with  the  contention  that  the  circuit  court  had  no  power 
to  revoke  or  annul  the  certificate,  although  obtained  by  fraud,  perjury  and  mis- 
representation, as  alleged,  for  the  simple  reason  that  it  was  issued  prior  to  the 
passage  of  the  act  of  1905. 


485 

The  law  of  1905  provides  that:  "The  circuit  courts  of  this  state  are  hereby 
vested  with  jurisdiction  and  power  to  revoke  and  annul  any  license  or  certifi- 
cate of  registration  which  has  been  heretofore  or  which  may  be  hereafter  issued 
to  any  person  to  practice  medicine  or  surgery,  or  osteopathy  in  this  state,  who 
is  guilty  of  immoral,  dishonorable  or  unprofessional  conduct,  after  the  passage 
of  this  act  or  who  has  procured  such  license  or  certificate  of  registration  by 
fraud  or  perjury,  or  where  the  same  was  obtained  through  error."  It  was  con- 
tended that  the  act  is  not  retroactive,  and  therefore  that  the  complaint  did  not 
state  a  cause  of  action.  This  was  based  on  the  claim  that  the  words,  "after  the 
passage  of  this  act,"  in  the  portion  of  the  act  above  quoted,  qualify  the  entire 
clause  so  quoted.  And  so  it  was  claimed  that,  not  only  must  the  dishonorable 
and  unprofessional  conduct  therein  mentioned  occur  after  the  passage  of  the  act, 
but  also  that  the  fraud,  perjury  or  error  for  which  it  is  sought  to  annul  the 
certificate  must  also  have  occurred  after  the  passage  of  the  act. 

The  Supreme  Court  answers  that  it  should  be  slow  to  hold  that  the  Circuit 
Court  has  no  jurisdiction  or  power  to  set  aside  a  certificate  of  registration  thus 
obtained,  even  in  the  absence  of  the  act  in  question.  But  it  is  unnecessary  to 
consider  that  question  here,  since  the  act  declares,  in  effect,  that  such  court  may 
"revoke  and  annul  any  license  or  certificate  of  registration  which  has  been  .  .  . 
procured  ...  by  fraud  or  perjury,  or  where  the  same  has  been  obtained 
through  error."  The  word  "heretofore,"  in  the  portion  of  the  act  quoted,  mani- 
festly refers  to  "any  license  or  certificate  of  registration"  issued  prior  to  the 
passage  of  the  act.  So  the  act  declares,  in  effect,  that  such  practitioner  "who 
is  guilty  of  immoral,  dishonorable  or  unprofessional  conduct,"  as  defined  therein, 
"after  the  passage  of  the  act,"  may  have  his  license  or  certificate  of  registration 
revoked  or  annuled,  even  though  it  was  obtained  without  fraud  or  perjury  or 
misrepresentation.  The  manifest  purpose  of  the  act  is  to  prevent  any  incom- 
petent or  unfit  person  from  practicing  medicine  or  surgery  or  osteopathy,  and 
thus  protect  the  public  from  the  injuries  which  might  otherwise  be  incurred. 
The  court  must  hold  that  the  act  is  retroactive  to  the  extent  indicated.  Nor 
does  the  court  think  that  with  such  construction  chapter  422  is  unconstitutional 
and  void. 

This  not  being  an  action  to  enforce  a  penalty  or  forfeiture,  but  a  civil  action 
to  set  aside  a  certificate  of  registration  for  the  reasonss  stated,  the  court  says 
that  it  perceives  no  ground  for  the  claim  that  the  action  is  barred  by  the  two 
years'  statute  of  limitation,  or  the  three  years'  statute  of  limitation,  or  any  other 
statute  of  limitation.  Lastly,  this  action  was  brought  in  the  name  of  the  State 
of  Wisconsin,  and  the  Wisconsin  State  Board  of  Medical  Examiners  was  not  a 
party,  but  the  court  perceives  no  ground  for  claiming  that  there  was  a  defect 
of  parties. 


OBJECT   OF   MEDICAL   PKACTICE   ACT   NOT   TO    FORM   MONOPOLY 

State   v.  Schmidt,  138  Wis.  53;  119  N.  W.  647 

1909 

The  act  of  1897  provided  for  a  state  board  of  medical  examiners  and  required 
all  beginning  to  practice  medicine  or  surgery  in  Wisconsin  after  July  1,  1897, 
first  to  procure  a  certificate  of  qualification  from  such  board.  It  did  not  deal 
in  any  respect  with  members  of  the  profession  in  actual  practice  in  Wisconsisn, 
oji  such  date.  The  law  of  1899  enlarged  the  scope  of  the  board's  jurisdiction  by 
making  the  privilege  of  every  person  who  was  a  resident  practicing  physician 
in  Wisconsin  July  1,  1897,  to  continue  in  such  practice  contingent  on  his  obtain- 
ing a  certificate  of  qualification  from  the  board  within  a  prescribed  time  and 
becoming  duly  registered  with  the  board.  The  law  prescribed,  as  a  condition 
of  granting  the  certificate,  that  the  application  should  be  made  therefor  and  the 
applicant  submit  in  support  thereof  his  "diploma  or  other  credential  or  evidence 
of  qualification"  and  be  a  "reputable  resident  physician  or  surgeon  of  good  moral 
character  who  was  on  the  first  day  of  July,  1897,  in  the  actual  practice  of  med- 
icine or  surgery  in  the  state  of  Wisconsin."  In  mandatory  language  the  board 
was  required,  on  such  application  being  made  by  a  person  competent,  as  provided 


486 

in  the  law,  to  make  it,  and  supported  by  the  evidence  of  qualifications  prescribed 
— to  grant  the  registration  and  certificate. 

The  law  of  1905  gave  the  circuit  courts  of  Wisconsin  jurisdiction  to  annul 
any  certificate  obtained  as  aforesaid,  in  case  of  the  issuance  thereof  resulting 
from  error  of  the  board  or  fraud  or  perjury.  From  the  foregoing  it  will  be  seen 
that  the  board  of  medical  examiners  in  acting  on  the  defendant's  application, 
was  required  to  decide,  by  the  exercise  of  quasi  judicial  authority,  first,  whether 
the  defendant  was,  July  1,  1897,  a  resident  physician  or  surgeon  and  actually 
engaged  in  practice  in  Wisconsin;  second,  whether  he  was,  at  the  time  of  the 
application,  a  reputable  physician  or  surgeon;  third,  whether  he  was  a  man  of 
good  moral  character. 

The  board  was  left  free  to  prescribe  its  own  rules  of  procedure,  governed  only 
by  the  requirement  that  the  applicant  should  submit  the  evidence  of  his  quali- 
fication. .That,  in  the  broadest  sense  the  language  can  be  reasonably  viewed, 
related  to  all  of  the  three  matters  of  fact  mentioned.  It  might  possibly  be  held 
more  restrictive,  but  for  the  purposes  of  this  case  the  broader  view  is  taken  to 
be  the  correct  one.  Manifestly,  the  legislature  conceived  that  it  was  dealing  with 
the  entire-  class  of  persons  known  as  physicians,  in  the  broadest  sense  of  the 
term,  not  in  any  narrow  sense,  which  would  favor  those  claiming,  and  perhaps 
entitled  to  superior  distinction.  The  purpose  was  very  far  from  that  of  creating 
a  monopoly  in  favor  of  special  schools  of  medicine.  The  term  was  evidently  used 
in  its  proper  sense,  that  of  including  any  person  of  whatever  school,  and  whether 
belonging  to  any  known  school,  engaged  in  good  faith,  in  treating  human  ills  by 
any  remedy,  or  remedies,  however  simple,  so  as  to  be  known  among  the  people 
as  a  physician. 

What  has  been  said  as  to  the  legislative  meaning  is  so  manifest,  in  the  court's 
judgment,  from  the  very  fact  alone  that  it  was  dealing  with  an  existing  condi- 
tion which  it  did  not  intend  to  disturb  except  to  the  extent  of  weeding  out  dis- 
reputable and  immoral  characters.  But  that  is  placed  beyond  all  reasonable 
doubt  by  the  fact  that  the  law  of  1897,  to  which  the  law  of  1899  referred,  expressly 
defined  the  term,  making  it  include  every  person  "who  shall  for  a  fee,  prescribe 
drugs  or  other  medical  or  surgical  treatment  for  the  cure  or  relief  of  any  wound, 
fracture,  bodily  injury,  infirmity  or  disease." 

The  court  must  also  appreciate  that  the  act  of  1905  did  not  contemplate  a 
new  trial  of  the  questions  presented  to  the  board.  Aside  from  whether  it  was 
imposed  on  by  fraud  or  perjury,  the  scope  of  the  trial  was  limited,  by  the  act, 
to  the  question  of  whether  the  board  committed  error.  Just  what  the  legisla- 
ture intended  by  the  use,  unexplained,  of  the  word  "error"  may  admit  of  some 
doubt,  but  the  court  is  constrained  to  believe  that  the  term  was  used  in  the 
sense  it  is  ordinarily  understood  as  applied  to  trials  in  courts  before  juries. 
That  is,  while,  aside  from  jurisdictional  errors  in  the  limited  sense  of  such  as 
would  render  the  decision  void,  it  is  confined  to  such  absence  of  evidence  in  sup- 
port of  the  board's  decision  that,  in  no  reasonable  view  thereof,  could  its  decision 
be  justified,  or  prejudicial  refusals  to  admit  or  exclude  evidence,  or  other  preju- 
dicial misapprehensions  of  law;  error  which  might  properly  be  denominated 
"jurisdictional,"  as  regards  trials  before  quasi  judicial  bodies — errors  which,  in 
the  general  sense  are  purely  judicially,  in  the  sense  that  a  decision  is  binding  on 
all  concerned,  till  set  aside  by  some  proper  proceedings  for  that  purpose. 

The  board  was  not  in  error  in  its  construction  of  the  term  "physician,"  as  it 
was  evident  that  it  did  not  understand  that  term  as  applied  to  persons  practic- 
ing the  healing  art  July  1,  1897,  referred  only  to  such  as  possessed  that  technical 
knowledge  of  the  human  system  and  knowledge  of  drugs  and  other  remedies  and 
how  to  administer  them,  commonly  supposed  to  be  possessed  by  members  in  good 
standing  of  the  great  schools  of  medicine. 

Did  the  board  commit  error  as  to  the  meaning  of  the  word  "reputable"?  Here 
was  the  state's  bone  of  contention.  The  claim  is  not  new,  that  a  physician  or 
surgeon,  however  learned  in  fact,  is  disreputable,  unless  he  belongs  to  some  incor- 
porated medical  society  or  holds  a  diploma  from  some  reputable  medical  school. 
This  court  has  said,  and  other  courts  have  said,  that  the  term  "reputable"  as 
used  in  the  statute  has  no  such  legal  and  technical  meaning  as  counsel  claimed 
for  it.  Therefore,  until  the  legislature  shall  have  unmistakably  used  it  in  such 
sense,  no  such  meaning  can  be  given  thereto  by  judicial  construction. 


487 

The  word  "reputable"  has  a  plain  ordinary  meaning  having  reference  to  gen- 
eral character  for  some  honorable  work.  Whether  one  is  reputable  or  not,  means 
whether  he  is  worthy  of  praise  or  not  in  the  particular  line  under  consideration. 
If  one  is  regarded  as  honorable  and  praiseworthy  as  a  member  of  the  medical 
profession,  of  whatever  school,  or  whether  classed  with  any  particular  school, 
by  reason  of  the  character  of  his  work  and  his  conduct  professionally,  he  satisfies 
the  statutory  essentials  of  reputability  as  to  his  particular  line,  though  he  may 
never  have  crossed  the  threshold  of  a  medical  college  or  been  a  member  of  any 
medical  society.  Whether  as  a  matter  of  fact,  as  an  original  matter,  the  defend- 
ant possessed  the  qualifications  one  would  expect  to  characterize  a  physician  or 
not,  as  before  indicated,  was  not  for  the  Circuit  Court,  nor  is  it  for  this  court 
to  decide.     The  board  had  full  authority  to  inquire  into  the  matter. 


REGULATION    OF    PRACTICE    OF    MEDICINE    NOT    DEPRIVATION    OF 

VESTED    RIGHTS 

Dent  v.  West  Virginia,  129  U.  8.  11J, ;  32  L.  Ed.  623;  9  Sup.  Ct.  IM 

1889 

This  is  an  appeal  from  the  decision  of  the  Supreme  Court  of  West  Virginia 
alleging  that  the  medical  practice  act  of  West  Virginia  is  unconstitutional  and 
void  and  in  conflict  with  the  clause  of  the  fourteenth  amendment,  which  declares 
that  no  state  shall  deprive  anyone  of  life,  liberty  or  property  without  due  process 
of  law,  and  that  the  denial  to  the  defendant  of  the  right  to  practice  his  profes- 
sion without  the  certificate  required  by  the  state  constituted  the  deprivation  of 
his  vested  right  and  estate  in  his  profession  which  he  had  previously  acquired. 
The  Supreme  Court  says  that  it  is  undoubtedly  the  right  of  every  citizen  of  the 
United  States  to  follow  any  lawful  calling,  profession  or  business  he  may  choose, 
subject  only  to  such  restrictions  as  are  imposed  upon  all  persons  of  like  sex,  age 
and  condition.  All  vocations  are  open  to  everyone  on  like  condition.  The  right 
to  continue  their  prosecution  is  of  great  value  to  the  possessors  and  cannot  be 
arbitrarily  taken  from  them  any  more  than  their  real  or  personal  property  can 
thus  be  taken,  but  there  is  no  arbitrary  deprivation  of  such  right  where  its  exer- 
cise is  not  permitted  because  of  the  failure  to  comply  with  conditions  imposed 
by  the  state  for  the  protection  of  society.  The  power  of  the  state  to  provide  for 
the  general  welfare  of  its  people  authorizes  it  to  prescribe  such  regulations  as 
in  its  judgment  will  secure  or  tend  to  secure  them  against  the  consequences  of 
ignorance  and  incapacity,  as  well  as  of  deception  and  fraud.  It  has  been  the 
practice  of  different  states  from  time  immemorial  to  exact  in  many  pursuits  a 
certain  degree  of  skill  and  learning  upon  which  the  community  may  confidently 
rely,  their  possession  being  generally  ascertained  upon  an  examination  by  com- 
petent persons  or  inferred  from  a  diploma  or  license  from  an  institution  estab- 
lished for  instruction  on  the  subjects  with  which  such  pursuits  have  to  deal. 
The  nature  and  extent  of  the  qualifications  required  must  depend  primarily  upon 
the  judgment  of  the  state  as  to  their  necessity.  If  they  are  appropriate  to  the 
calling  or  profession  and  attainable  by  reasonable  study  or  application,  no  objec- 
tion to  their  validity  can  be  raised  because  of  their  stringency  or  difficulty.  It 
is  only  when  they  have  no  relation  to  such  calling  or  profession  or  are  unattain- 
able by  reasonable  efforts  that  they  can  operate  to  deprive  one  of  his  right  to 
pursue  a  lawful  vocation.  After  reviewing  the  need  of  careful  preparation  on 
the  part  of  those  desiring  to  practice  medicine  and  the  importance  of  regulation 
of  the  practice  of  medicine  by  the  state  for  the  protection  of  society,  the  court 
holds  that  there  is  nothing  of  an  arbitrary  nature  in  the  provisions  of  the 
statute  in  question  and  that  if  in  the  proceedings  under  the  statute  there  should 
be  any  unfair  or  unjust  action  on  the  part  of  the  board  the  remedy  would  be 
found  in  the  courts  of  the  state.  The  law  of  West  Virginia  was  intended  to 
secure  such  skill  and  learning  in  the  profession  of  medicine  that  the  community 
might  trust  with  confidence  those  receiving  a  license  under  the  authority  of  the 
state.     The  judgment  of  the  Supreme  Court  of  West  Virginia  is  affirmed. 


488 

CONTINUING  REGULATION  DOES  NOT  MAKE  LAW  EX  POST  FACTO 
Hawker  v.  People  of  New  York,  110  U.  8.  189;  h  L.  Ed.  1002;  IS  Sup.  Ct.  Rep.  513 

1898 

In  1878,  the  plaintiff  in  error  was  tried  and  convicted  of  the  crime  of  abor- 
tion, and  sentenced  to  imprisonment  in  the  penitentiary  for  the  term  of  ten  years. 
In  1893  the  legislature  of  the  state  of  New  York  passed  an  act  which  provides 
that  any  person  who,  after  conviction  of  a  felony,  shall  attempt  to  practice  med- 
icine, or  shall  so  practice,  shall  be  guilty  of  a  misdemeanor,  and  on  conviction 
thereof  shall  be  punished  by  fine  or  imprisonment.  Under  this  statute,  defendant 
was  indicted.  The  indictment  alleged  the  conviction  in  1878,  and  charged  that, 
having  been  so  convicted  of  the  crime  and  felony  of  abortion,  defendant  did 
unlawfully  practice  medicine.  He  was  tried  and  convicted.  That  conviction 
having  been  sustained  by  the  court  of  appeals  of  the  state,  the  defendant  appealed 
to  the  Supreme  Court  of  the  United  States. 

The  single  question  presented  is  as  to  the  constitutionality  of  this  statute 
when  applied  to  one  who  had  been  convicted  of  a  felony  prior  to  its  enactment. 
Its  unconstitutionality  is  alleged  on  the  ground  of  an  alleged  conflict  with  article 
1,  section  10,  of  the  constitution  of  the  United  States,  which  forbids  a  state  to 
pass  "any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the  obligation 
of  contracts."  On  the  one  hand,  it  is  said  that  defendant  was  tried,  convicted, 
and  sentenced  for  a  criminal  offense.  He  suffered  the  punishment  pronounced. 
The  legislature  has  no  power  to  add  to  that  punishment.  The  right  to  practice 
medicine  is  a  valuable  property  right.  To  deprive  a  man. of  it  is  in  the  nature 
of  punishment,  and,  after  the  defendant  has  once  fully  atoned  for  his  offense,  a 
statute  imposing  this  additional  penalty  is  one  simply  increasing  the  punish- 
ment for  the  offense,  and  is  ex  post  facto. 

On  the  other,  it  is  insisted  that,  within  the  acknowledged  reach  of  the  police 
power,  a  state  may  prescribe  the  qualifications  of  one  engaged  in  any  business 
so  directly  affecting  the  lives  and  health  of  the  people  as  the  practice  of  med- 
icine. It  may  require  both  qualifications  of  learning  and  of  good  character,  and, 
if  it  deems  that  one  who  has  violated  the  criminal  laws  of  the  state  is  not  pos- 
sessed of  sufficient  good  character,  it  can  deny  to  such  a  one  the  right  to  prac- 
tice medicine;  and,  further,  it  may  make  the  record  of  a  conviction  conclusive 
evidence  of  the  fact  of  the  violation  of  the  criminal  law,  and  of  the  absence  of 
the  requisite  good  character. 

The  court  is  of  opinion  that  this  argument  is  the  more  applicable,  and  must 
control  the  answer  to  this  question.  No  precise  limits  have  been  placed  upon 
the  police  power  of  a  state,  and  yet  it  is  clear  that  legislation  which  simply 
defines  the  qualifications  of  one  who  attempts  to  practice  medicine  is  a  proper 
exercise  of  that  power.  Care  for  the  public  health  is  something  confessedly 
belonging  to  the  domain  of  that  power.  The  physician  is  one  whose  relations 
to  life  and  health  are  of  the  most  intimate  character.  It  is  fitting,  not  merely 
that  he  should  possess  a  knowledge  of  diseases  and  their  remedies,  but  also  that 
he  should  be  one  who  may  safely  be  trusted  to  apply  those  remedies.  Character 
is  as  important  a  qualification  as  knowledge,  and  if  the  legislatm-e  may  properly 
require  a  definite  course  of  instruction,  or  a  certain  examination  as  to  learning, 
it  may  with  equal  propriety  prescribe  what  evidence  of  good  character  shall  be 
furnished.     These  propositions  have  been  often  affirmed. 

But  if  a  state  may  require  good  character  as  a  condition  of  the  practice  of 
medicine,  it  may  rightfully  determine  what  shall  be  the  evidences  of  that  char- 
acter. We  do  not  mean  to  say  that  it  has  an  arbitrary  power  in  the  matter,  or 
that  it  can  make  a  conclusive  test  of  that  which  has  no  relation  to  character, 
but  it  may  take  whatever,  according  to  the  experience  of  mankind,  reasonably 
tends  to  prove  the  fact  and  make  it  a  test.  Whatever  is  ordinarily  connected 
with  bad  character,  or  indicative  of  it,  may  be  prescribed  by  the  legislature  as 
conclusive  evidence  thereof.  It  is  not  the  province  of  the  courts  to  say  that  other 
tests  would  be  more  satisfactory,  or  that  the  naming  of  other  qualifications 
would  be  more  conducive  to  the  desired  result.  These  are  questions  for  the 
legislature  to  determine. 


489 

It  is  not  open  to  doubt  tliat  the  commission  of  crime — the  violation  of  the 
penal  laws  of  a  state — has  some  relation  to  the  question  of  character.  It  is  not, 
as  a  rule,  the  good  people  who  commit  crime.  When  the  legislature  declares  that 
whoever  has  violated  the  criminal  laws  of  the  state  shall  be  deemed  lacking  in 
good  moral  character,  it  is  not  laying  down  an  arbitrary  or  fanciful  rule,  one 
having  no  relation  to  the  subject-matter,  but  is  only  appealing  to  a  well-recog- 
nized fact  of  human  experience;  and,  if  it  may  make  a  violation  of  criminal  law 
a  test  of  bad  character,  what  more  conclusive  evidence  of  the  fact  of  such  viola- 
tion can  there  be  than  a  conviction  duly  had  in  one  of  the  courts  of  the  state? 
The  conviction  is,  as  between  the  state  and  the  defendant,  an  adjudication  of 
the  fact.  So,  if  the  legislature  enacts  that  one  who  has  been  convicted  of  crime 
shall  no  longer  engage  in  the  practice  of  medicine,  it  is  simply  applying  the  doc- 
trine of  res  judicata,  and  invoking  the  conclusive  adjudication  of  the  fact  that 
the  man  has  violated  the  criminal  law,  and  is  presumptively,  therefore,  a  man 
of  such  bad  character  as  to  render  it  unsafe  to  trust  the  lives  and  health  of 
citizens  to  his  care. 

That  the  form  in  which  this  legislation  is  cast  suggests  the  idea  of  the  impo- 
sition of  an  additional  punishment  for  past  offenses  is  not  conclusive.  We  must 
look  at  the  substance,  and  not  the  form ;  and  the  statute  should  be  regarded  as 
though  it  in  terms  declared  that  one  who  had  violated  the  criminal  laws  of  the 
state  should  be  deemed  of  such  bad  character  as  to  be  unfit  to  practice  medicine, 
and  that  the  record  of  a  trial  and  conviction  should  be  conclusive  evidence  of 
such  violation.  All  that  is  embraced  in  these  propositions  is  condensed  into  the 
single  clause  of  the  statute,  and  it  means  that,  and  nothing  more.  The  state  is 
not  seeking  to  further  punish  a  criminal,  but  only  to  protect  its  citizens  from 
physicians  of  bad  character.  The  vital  matter  is  not  the  conviction,  but  the  vio- 
lation of  law.  The  former  is  merely  the  prescribed  evidence  of  the  latter.  Sup- 
pose the  statute  had  contained  only  a  clause  declaring  that  no  one  should  be 
permitted  to  act  as  a  physician  who  had  violated  the  criminal  laws  of  the  state, 
leaving  the  question  of  violation  to  be  determined  according  to  the  ordinary  rules 
of  evidence;  would  it  not  seem  strange  to  hold  that  that  which  conclusively 
established  the  fact  effectually  relieved  from  the  consequences  of  such  violation? 

It  is  no  answer  to  say  that  this  test  of  character  is  not  in  all  cases  absolutely 
certain,  and  that  sometimes  it  works  harshly.  Doubtless,  one  who  has  violated 
the  criminal  law  may  thereafter  reform,  and  become  in  fact  possessed  of  a  good 
moral  character.  But  the  legislature  has  power  in  cases  of  this  kind  to  make 
a  rule  of  universal  application,  and  no  inquiry  is  permissible  back  of  the  rule  to 
ascertain  whether  the  fact  of  which  the  rule  is  made  the  absolute  test  does  or 
does  not  exist.  Illustrations  of  this  are  abundant.  At  common  law,  one  con- 
victed of  crime  was  incompetent  as  a  witness;  and  this  rule  was  in  no  manner 
affected  by  the  lapse  of  time  since  the  commission  of  the  offense,  and  could  not 
be  set  aside  by  proof  of  a  complete  reformation.  So,  in  many  states  a  convict 
is  debarred  the  privileges  of  an  elector,  and  an  act  so  debarring  was  held  appli- 
cable to  one  convicted  before  its  passage.  In  a  certain  sense  such  a  rule  is  arbi- 
trary, but  it  is  within  the  power  of  a  legislature  to  prescribe  a  rule  of  general 
application  based  upon  a  state  of  things  which  is  ordinarily  evidence  of  the  ulti- 
mate fact  sought  to  be  established. 

Such  legislation  is  not  to  be  regarded  as  a  mere  imposition  of  additional 
penalty,  but  as  prescribing  the  qualifications  for  the  duties  to  be  discharged  and 
the  position  to  be  filled,  and  naming  what  is  deemed  to  be,  and  what  is  in  fact, 
appropriate  evidence  of  such  qualifications. 

The  court  finds  no  error  in  the  record,  and  therefore  the  judgment  of  the  state 
court  is  affirmed. 

Mr.  Justice  Harlan,  dissenting. 

If  the  statute  in  force  when  the  offense  of  abortion  was  committed  had  pro- 
vided that,  in  addition  to  imprisonment  in  the  penitentiary,  the  accused,  if  con- 
victed, should  not  thereafter  practice  medicine,  no  one,  I  take  it,  would  doubt 
that  such  prohibition  was  a  part  of  the  punishment  prescribed  for  the  offense. 
And  yet  it  would  seem  to  be  the  necessary  result  of  the  opinion  of  the  court  in 
the  present  case  that  a  statute  passed  after  the  commission  of  the  offense  in 
1877,  and  which,  by  its  own  force,  made  it  a  crime  for  the  defendant  to  continue 
in  the  practice  of  medicine,  is  not  an  addition  to  the  punishment  inflicted  upon 


490 

him  in  1878.  I  cannot  assent  to  this  view.  It  is,  I  think,  inconsistent  with  the 
provision  of  the  constitution  of  the  United  States  declaring  that  no  state  shall 
uass  an  ex  post  facto  law. 

If  long  after  the  commission  of  a  crime,  and  long  after  the  offender  has  suffered 
all  the  punishment  prescribed  at  the  time  for  its  commission,  a  statute  should, 
by  its  own  force,  and  solely  because  of  his  conviction  of  that  offense,  take  from 
him  the  right  to  further  pursue  his  profession,  would  not  such  a  statute  inflict 
upon  him  a  greater  punishment  than  was  annexed  to  the  crime  when  committed, 
and  alter  the  situation  to  his  disadvantage,  "in  relation  to  the  offense  or  its  con- 
sequences?"    In  my  opinion,  this  question  should  receive  an  affirmative  answer. 

It  was  said  in  argument  that  the  judgment  below  was  sustained  by  Dent  v. 
West  Virginia,  129  U.  S.,  114,  9  Sup.  Ct.,  231.  That  case  presented  no  question 
under  the  ex  post  facto  clause  of  the  constitution.  It  only  involved  the  question 
whether  any  one  could,  of  right,  pursue  the  practice  of  medicine  without  obtain- 
ing a  license  to  do  so,  if  the  state  required  a  license  as  a  condition  of  exercising 
the  privilege  of  pursuing  that  profession.  This  court  held  that  such  a  statute 
was  within  the  reserved  police  power  of  the  state,  and  consistent  with  the  due 
process  of  law  enjoined  by  the  fourteenth  amendment.  It  was  not  the  case  of  a 
state  enactment  which,  by  its  own  force,  made  it  a  crime  for  any  person,  lawfully 
engaged,  when  such  act  was  passed,  in  the  practice  of  the  medical  profession,  to 
continue  to  do  so,  if  he  had  at  any  time  in  his  past  life  committed  a  felony, 
although  he  may  have  suffered  all  the  punishment  prescribed  for  such  felony 
when  it  was  committed.  If  the  statute  of  West  Virginia  had  been  of  that  char- 
acter, the  same  question  would  have  been  presented  that  arises  under  the  statute 
of  New  York. 

The  statute  in  question,  it  is  to  be  observed,  takes  no  account  whatever  of 
the  character,  at  the  time  of  the  passage,  of  the  person  whose  previous  convic- 
tion of  a  felony  is  made  an  absolute  bar  to  his  right  to  practice  medicine.  The 
offender  may  have  become,  after  conviction,  a  new  man  in  point  of  character, 
and  so  conducted  himself  as  to  win  the  respect  of  his  fellow  men,  and  be  recog- 
nized as  one  capable,  by  his  skill  as  a  physician,  of  doing  great  good.  But  these 
considerations  have  no  weight  against  the  legislative  decree  embodied  in  a  statute 
which,  without  hearing,  and  without  any  investigation  as  to  the  character  or 
capacity  of  the  person  involved,  takes  away  from  him  absolutely  a  right  which 
was  being  lawfully  exercised  when  that  decree  was  passed.  If  the  defendant 
had  been  pardoned  of  the  offense  committed  by  him  in  1877,  he  would  still,  under 
the  statute  of  1895,  have  become  a  criminal  if  he  continued  in  the  practice  of 
his  profession. 

It  will  not  do  to  say  that  the  New  York  statute  does  nothing  more  than  pre- 
scribe the  qualifications  which,  after  its  passage,  must  be  possessed  by  those 
who  practice  medicine.    I  must  withhold  my  assent  to  the  opinion  of  the  majority. 

Mr.  Justice  Peckham  and  Mr.  Justice  McKenna,  concur  in  this  dissent. 


CONSTITUTIONALITY    OF    MEDICAL    PRACTICE    ACT 

Reetz  v.  People  of  the  State  of  Michigan,  188  U.  S.  505;  23  Sup.  Gt.  Rep.  390; 

1ft  L.  Ed.  563 
1903 

The  Supreme  Court  of  the  United  States  says,  in  that  the  power  of  a  state 
to  make  reasonable  provisions  for  determining  the  qualifications  of  those  engag- 
ing in  the  practice  of  medicine,  and  punishing  those  who  attempt  to  engage 
therein  in  defiance  of  such  statutory  provisions,  is  not  open  to  question.  It  was 
objected  in  this  case  that  the  board  of  registration  in  medicine  was  given  author- 
ity by  Michigan  Public  Act  No.  237  of  1899  to  exercise  judicial  powers  without 
any  appeal  from  its  decision,  inasmuch  as  it  might  refuse  a  certificate  of  regis- 
tration if  it  should  find  that  no  sufficient  proof  was  presented  that  the  applicant 
had  been  "legally  registered  under  Act  No.  167  of  1883."  That,  it  was  contended, 
was  the  determination  of  a  legal  question  which  no  tribunal  other  than  a  regu- 
larly organized  court  could  be  empowered  to  decide.     The  answer   is,  that  the 


491 

decision  of  the  State  Supreme  Court  is  conclusive  that  the  act  does  not  conflict 
with  the  state  constitution,  and  the  Supreme  Court  of  the  United  States  says  it 
knows  of  no  provision  in  the  federal  constitution  which  forbids  a  state  from 
granting  to  a  tribunal,  whether  called  a  court  or  a  board  of  registration,  the 
final  determination  of  a  legal  question.  Indeed,  it  not  infrequently  happens  that 
a  full  discharge  of  their  duties  compels  boards,  or  officers  of  a  purely  ministerial 
character,  to  consider  and  determine  questions  of  a  legal  nature.  Due  process  is 
not  necessarily  judicial  process.  Neither  is  the  right  of  appeal  essential  to  due 
process  of  law.  But  while  the  statute  makes  in  terms  no  provision  for  a  review 
of  the  proceedings  of  the  board,  yet  it  is  not  true  that  such  proceedings  are 
beyond  investigation  in  the  courts.  In  Metcalf  v.  State  Board  of  Registration, 
123  Mich.,  661,  an  application  for  mandamus  to  compel  this  board  to  register 
the  petitioner  was  entertained,  and  although  the  application  was  denied,  yet  the 
denial  was  based,  not  on  a  want  of  jurisdiction  in  the  court,  but  on  the  merits. 

Again,  the  court  holds  that  when  a  statute  fixes  the  time  and  place  of  meet- 
ing of  any  board  or  tribunal,  no  special  notice  to  parties  interested  is  required. 
The  statute  is  itself  sufficient  notice.  If  this  party  had  applied  at  any  meeting 
for  a  hearing,  the  board  would  have  been  compelled  to  grant  it,  and  if  on  such 
hearing  his  offer  of  or  demand  for  testimony  had  been  refused,  the  question  might 
have  been  fairly  presented  to  the  state  courts  to  what  extent  the  action  of  the 
board  had  deprived  him  of  his  rights.  Then,  he  seemed  to  assume  that  the  pro- 
ceedings before  the  board  were  in  themselves  of  a  criminal  nature,  and  that  the 
state  by  such  proceedings  was  endeavoring  to  convict  him  of  an  offense  in  the 
practice  of  his  profession.  The  court  says  that  this  was  a  mistake.  The  state 
was  simply  seeking  to  ascertain  who  ought  to  be  permitted  to  practice  medicine 
or  surgery,  and  criminality  arises  only  w-hen  one  assumes  to  practice  without 
having  his  right  to  do  so  established  by  the  action  of  the  board.  The  proceed- 
ings of  the  board  to  determine  his  qualifications  were  no  more  criminal  than 
examinations  of  applicants  to  teach  or  practice  law,  and  if  the  provisions  for 
testing  such  qualifications  are  reasonable  in  their  nature,  a  party  must  comply 
with  them,  and  has  no  right  to  practice  his  profession  in  defiance  thereof.  It 
was  further  insisted  that  having  once  engaged  in  the  practice,  and  having  been 
licensed  so  to  do,  he  had  a  right  to  continue  in  such  practice,  and  that  this 
statute  was  in  the  nature  of  an  ex  post  facto  law.  But  the  court  says  that  the 
case  of  Hawker  v.  New  York,  170  U.  S.,  189,  was  decisive  on  that  question.  The 
statute  does  not  attempt  to  punish  him  for  any  past  offense,  and  in  the  most 
extreme  view  can  only  be  considered  as  requiring  continuing  evidence  of  his  quali- 
fications as  a  physician  or  surgeon. 

Meffert  v.  Packer  et  al.,  State  Board  of  Medical  Registration  and  Examination, 
195  U.  8.,  625;  25  Sup.  Ct.  Rep.,  790;  49  L.  Ed.,  350 

Decided  by  Supreme  Court,  without  opinion.  Decision  of  Kansas  Supreme 
Court  affirmed. 


CONSTITUTIONALITY    OF    MEDICAL    PRACTICE    ACTS 

Watson  v.  State  of  Maryland,  218  U.  8.  173;  51,  L.  Ed,  987;  30  S.  Ct.  R.  644 

1910 

The  Supreme  Court  of  the  United  States  says,  that  it  is  too  well  settled  to 
require  discussion  at  this  day  that  the  police  power  of  the  states  extends  to  the 
regulation  of  certain  trades  and  callings,  particularly  those  which  closely  con- 
cern the  public  health.  There  is  perhaps  no  profession  more  properly  open  to 
such  regulation  than  that  which  embraces  the  practitioners  of  medicine.  Deal- 
ing, as  its  followers  do,  with  the  lives  and  health  of  the  people,  and  requiring 
for  its  successful  practice  general  education  and  technical  skill,  as  well  as  good 
character,  it  is  obviously  one  of  those  vocations  where  the  power  of  the  state 
may  be  exerted  to  see  that  only  qualified  persons  shall  undertake  its  responsible 
and  difficult  duties.  To  this  end  many  of  the  states  of  the  Union  have  enacted 
statutes  which  require  the  practitioners  of  medicine  to  submit  to  an  examination 
by  a  competent  board  of  physicians  and  surgeons,  and  to  receive  duly  authenti- 
cated certificates  showing  that  they  are  deemed  to  possess  the  necessary  qualifi- 
cations of  learning,  skill  and  character  essential  to  their  calling. 


492 

In  such  statutes  there  are  often  found  exceptions  in  favor  of  those  who  have 
practiced  their  calling  for  a  period  of  years.  In  the  Dent  case  an  exception  was 
made  in  favor  of  practitioners  of  medicine  who  had  continuously  practiced  their 
profession  for  ten  years  prior  to  a  date  shortly  before  the  enactment  of  the  law. 
Such  exception  proceeds  on  the  theory  that  those  who  have  acceptably  followed 
the  profession  in  the  community  for  a  period  of  years  may  be  assumed  to  have 
the  qualifications  which  others  are  required  to  manifest  as  a  result  of  an  exam- 
ination before  a  board  of  medical  experts.  In  the  Maryland  statute  under  con- 
sideration, the  excepted  class  were  those  who  had  practiced  before  Jan.  1,  1898, 
being  more  than  four  years  before  the  passage  of  the  law,  and  who  could  show, 
presumably  with  a  view  to  establishing  that  they  were  actively  practicing  at  that 
time,  that  they  had  treated  at  least  twelve  persons  within  one  year  of  that  date. 

Conceding  the  power  of  the  legislature  to  make  regulations  of  this  character, 
and  to  exempt  the  experienced  and  accepted  physicians  from  the  requirements  of 
an  examination  and  certificate,  the  details  of  such  legislation  rest  primarily 
within  the  discretion  of  the  state  legislature.  It  is  the  lawmaking  body,  and 
the  federal  courts  can  interfere  only  when  fundamental  rights  guaranted  by  the 
federal  constitution  are  violated  in  the  enactment  of  such  statutes. 

This  subject  has  been  so  frequently  and  recently  before  this  court  as  not  to 
require  an  extended  consideration.  The  right  to  regulate  occupations  was  con- 
sidered by  this  court  at  the  present  term  in  the  case  of  Williams  v.  Arkansas, 
217  U.  S.,  79.  It  was  therein  held  that  regulations  of  a  particular  trade  or  busi- 
ness essential  to  the  public  health  and  safety  were  within  the  legislative  capacity 
of  the  state  in  the  exercise  of  its  police  power,  and  that  unless  such  regulations 
are  so  unreasonable  and  extravagant  as  to  interfere  with  property  and  personal 
rights  of  citizens,  unnecessarily  and  arbitrarily,  they  are  within  the  power  of 
the  state;  and  that  the  classification  of  the  subjects  of  such  legislation,  so  long 
as  such  classification  has  a  reasonable  basis,  and  is  not  merely  arbitrary  selec- 
tion without  real  difference  between  the  subjects  included  and  those  omitted  from 
the  law,  does  not  deny  to  the  citizen  the  equal  protection  of  the  laws.  Applying 
these  tests,  the  court  sees  nothing  arbitrary  or  oppressive  in  the  classification 
of  physicians  subject  to  the  provisions  of  this  statute,  which  excludes  from  its 
requirements  those  who  have  practiced  prior  to  Jan.  1,  1898,  and  were  able  to 
show  that  they  had  treated  at  least  twelve  persons  in  a  professional  way  within 
a  year  of  that  date. 

But  it  was  insisted  that  undue  discrimination  was  shown  and  equal  protec- 
tion of  the  law  denied  in  the  exceptions  ot  the  statute  "  .  .  .  .  but  nothing 
herein  contained  shall  be  construed  to  apply  to  gratuitous  services,  nor  to  any 
resident  or  assistant  resident  physicians  or  students  at  hospitals,  in  the  dis- 
charge of  their  hospital  or  dispensary  duties,  or  in  the  office  of  physicians,  or 
to  any  physician  or  surgeon  from  another  state,  territory,  or  district  in  which 
he  resides,  when  in  actual  consultation  with  a  legal  practitioner  of  this  state, 
or  to  commissioned  surgeons  of  the  United  States  Army  or  Navy  or  Marine- 
Hospital  Service,  or  to  chiropodists,  or  to  midwives,  or  to  masseurs  or  other 
manual  manipulators,  who  use  no  other  means;  nor  shall  the  provisions  of  this 
subtitle  apply  to  physicians  or  surgeons  residing  o\\  the  borders  of  a  neighbor- 
ing state,  and  duly  authorized  under  the  laws  thereof  to  practice  medicine  or 
surgery  therein,  whose  practice  extends  into  the  limits  of  this  state:  Provided, 
that  such  practitioners  shall  not  open  an  office  or  appoint  places  to  meet  their 
patients  or  receive  calls  within  the  limits  of  this  state  without  complying  with 
the  provisions  of  this  subtitle:  Provided,  that  the  same  privileges  be  accorded 
to  licensed  physicians  of  this  state:  Provided,  further,  that  nothing  in  this  sub- 
title shall  annul  any  of  the  provisions  of  article  32,  title  'Dentistry,'  nor  shall 
apply  to  any  registered  graduate  of  dental  surgery  now  practicing  in  the  said 
state  of  Maryland,  with  the  sign  titles:  Dentist,  surgeon  dentist,  dental  surgeon, 
or  stomatologist." 

The  court  will  not  take  occasion  to  consider  each  of  these  exceptions.  A  read- 
ing of  them  makes  it  manifest  that  they  are  not  without  reason.  Before  a  law 
of  this  kind  can  be  declared  violative  of  the  fourteenth  amendment  as  an  unrea- 
sonable classification  of  the  subjects  of  such  legislation  because  of  the  omission 
of  certain  classes,  the  court  must  be  able  to  say  that  there  is  "no  fair  reason  for 


493 

the  law  that  would  not  require  with  equal  force  its  extension  to  others  whom  it 
leaves  untouched." 

The  stress  of  the  argument  as  to  these  exceptions  was  put  on  the  exemption 
of  resident  physicians,  or  assistant  physicians,  at  hospitals,  and  students  on 
hospital  and  dispensary  duties.  The  selection  of  the  exempted  classes  was  within 
the  legislative  power,  subject  only  to  the  restriction  that  it  be  not  arbitrary  or 
oppressive,  and  apply  equally  to  all  persons  similarly  situated.  The  court  cannot 
say  that  these  exceptions  nullify  the  law.  The  reason  for  them  may  be  that  hos- 
pitals are  very  often  the  subject  of  state  or  municipal  regulation  and  control, 
and  employment  in  them  may  be  by  boards  responsible  to  public  authority  under 
state  law  or  municipal  ordinance.  Certainly  the  conduct  of  such  institutions 
may  be  regulated  by  such  laws  or  municipal  regulations  as  might  not  reach  the 
general  practitioner  of  medicine.  In  any  event,  the  court  cannot  say  that  these 
exceptions  are  so  wholly  arbitrary  and  have  such  slight  relation  to  the  objects 
to  be  attained  by  the  law  as  to  require  the  courts  to  strike  them  down  as  a  denial 
of  the  equal  protection  of  the  law,  within  the  meaning  of  the  federal  constitution. 

Another  point:  The  Court  of  Appeals  of  Maryland  determined  that  section  99 
of  Article  43  of  the  Maryland  Code  of  1904,  under  which  the  indictment  in  this 
case  was  prosecuted,  making  it  a  misdemeanor  to  attempt  to  practice  medicine 
in  the  state  of  Maryland  without  registration,  was  not  subject  to  the  limitations 
of  section  80,  relating  to  the  sending  of  notice,  etc.  The  offense,  the  Court  of 
Appeals  held,  was  created  solely  by  section  99  in  broad  and  general  language, 
without  exceptions  or  qualification,  and  that  for  conviction  under  that  section  it 
was  not  essential  to  prove  the  sending  of  the  notice  required  by  section  80,  which 
provides  for  the  sending  of  notices  to  physicians  practicing  in  the  state  without 
being  legally  registered.  That  construction  of  the  Maryland  statute  is  conclusive 
on  this  court  (the  Supreme  Court  of  the  United  States).  The  accused  had  a  trial 
before  a  court  and  jury  under  the  statutes  of  Maryland,  was  proceeded  against 
under  the  forms  provided  for  by  the  laws  of  that  state,  and  under  a  statute 
which  the  highest  court  of  the  state  has  held  completely  defined  the  offense  with- 
out resorting  to  the  necessity  of  notifying  unregistered  physicians  before  they 
became  liable  for  the  penalties  of  the  act  for  practicing  without  registration. 
The  contention  that  the  conviction  in  this  aspect  was  without  due  process  of  law 
under  the  federal  constitution  cannot  be  sustained. 


INDEX 

(REFERENCES  ARE  TO  PAGES) 


PAGE 

Abortion.     See  Medical  Practice  Act,  Practice  of  Medicine,  Unprofessional 
Conduct, 
procuring  or  aiding  and  abetting  in  procuring 164 

Admissibility  of  Evidence.     See  Evidence. 

Advertising.      See    Evidence,    Medicine,    Physicians,    Practice    of    Medicine, 
Unprofessional  Conduct. 

as  grounds  for  refusal  or  revocation  of  a  license 139,  165,   188 

as  the  practice  of  medicine 81,  83,   129 

Appeal.     See  Unprofessional  Conduct. 

Best  Evidence.     See  Evidence. 

Boards.    See  Evidence,  Indictment,  Medical  Practice  Act,  Practice  of  Medi- 
cine, Unprofessional  Conduct. 

appointed  by  governor — validity   of 44 

appointed  by    state    societies 45 

equal  protection  of  the  law 26 

method  of  appointing  thereto — validity  of 44 

power  to  create  boards  of  medical  examiners 11 

powers  of,  quasi  judicial 12,  14,  47-49 

power  to  revoke  licenses 15,  47,  48,  49 

powers,  validity  of 14,  49-60 

school  of  medicine  not  to  be  preferred  in  appointing  thereto 49 

Burden  of  Proof.     See  Evidence. 

indictment  —  burden  on  defendant 183 

record  in  county  clerk's  office  as  proof  of  the  existence  of  a  physician's 

license    58 

shifting  same  not  invalid 58 

Business. 

practice  of  medicine  as  a ?  ?  ? 

Cancer,  cure  of 

is  practicing  medicine 114 

Certiorari.     See  Remedies. 

Chiropractors. 

evidence    194 

included  under  the  medical  practice  act — validity  of 6,  35 

is  the  practice  of  medicine 106 

is  not  the  practice  of  medicine 109 

summary 109 

Christian  Science. 

evidence    194 

excepted  under  the  statute 63 

exception  of  not  unconstitutional 64 

included  under  medical  practice  acts — validity  of 38,  62 

is  the  practice  of  medicine 92,  103 

is  not  the  practice  of  medicine 105 

saving  clause  not   necessary 63 

summary  105 


496 

Clairvoyant,  Magic  Healers.  page 

are    practicing    medicine 125 

summary   126 

Conditions  Precedent.     See  Practice  of  Medicine. 

generally    132-159 

Conditions  Subsequent.     See  Practice  of  Medicine,  Unprofessional  Conduct. 

generally 159-168 

Constitutional  Law,  Federal 

boards,  power  to  create    11 

boards,  validity  of  their  powers 14 

boards,  power  to  revoke  a  license  for  cause 15 

due  process  of  law  clause  in  14th  amendment 20 

equal  protection  of  the  law  in  14th  amendment 20 

ex  post  facto  clause 28 

former  acquittal  or  conviction    32 

impairment  of  the  obligation  of  a  contract 31 

medical  practice  act 7 

police  power  defined 3 

police  power  and  the  practice  of  medicine 5 

powers  of  government  in  relation  to  medical  practice  acts 2,  3 

privilege  and  immunity  clauses 19 

revocation  of  a  license  for  cause ■ 15 

schools,  so-called 33 

separation  .of  powers .- 12 

unprofessional    conduct 17 

Constitutional  Law,  State. 

boards,  methods  of  appointing 44 

boards,  appointed  by  governor 44 

boards,  appointed  by  medical  societies 45 

due  process  of  law  and  the  revocation  of  licenses 48 

exemptions  under  the  medical  practice  act 

itinerant  vendors. 43 

medical  practice  acts  generally 40 

penalties     43 

pleading  the  validity  of  a  medical  practice  acts 59 

revocation  of  a  license  not  a  judicial  act 47,  48 

schools,   so-called .- 60-64 

titles  of  medical  practice   acts 43 

trial  by  jury  and  the  revocation  of  a  license 49 

unprofessional  conduct — sufficiency  of 46,  47 

Contract. 

impairment  of  obligation  of 31 

non-compliance  with  the  law  renders  contract  for  services  void 216 

Conviction.     See    Unprofessional   Conduct,   Evidence. 

Corporation.     See    Practice   of   Medicine. 

Court  of  law.     See  Unprofessional  Conduct. 

Defense. 

non-compliance  with  the  law  as  a  defense  in  tort. 200 

proving  more  than  one  infraction  in  one  count 183 

Degrees,  use  of  as  practice  of  medicine 82 

Dentistry. 

unlicensed   person   may   own  and   manage   office,  law   forbidding  same 
invalid   53,  84,  85 


497 

Dermatology.  pack 

is  the  practice  of  medicine 128 

Diplomas.     See  Boards,  Remedies. 

presentation  of —  as  condition  precedent  to  the  right  to  practice  medicine  143 
requirement  for  licensure  not  unreasonable 14,  19,  22,  51 

Due  Process  of  Law.     See  Unprofessional  Conduct. 

under  the  federal  constitution 16   20  48 

Eclectism. 

is  the  practice  of  medicine 96 

Emergency. 

acting  in  an,  is  not  the  practice  of  medicine 86 

Equal  Protection  of  the  Law. 

exceptions  under  the  medical  practice  acts 25,  26 

Evidence. 

advertising  as  a  physician 188 

as    essential    to    sustain    a    conviction    by    a    board    of    unprofessional 

conduct 208-210 

as  to  a  particular  school  of  medicine 193 

best  evidence .- 19g 

burden  on  defendant _   192 

expert  witness  199 

fee  .....'.  190 

former  jeopardy  200 

generally 184',  195,  184-201 

iment   186 

miscellaneous  200 

non-compliance  with  the  law  as  a  defense  in  tort 200 

opening  an  office Igg 

ordinary  witness 199 

prescribing  for  a  fee '   190 

prima  facie  192 

recommending  medicine  for  a  fee _   190 

recovery  for  medical  services 200 

relevancy I95 

sufficiency  of,  in  general   Ig4 

sufficiency  of,  under  statutes  forbidding  treatment  by  any  system  unless 
duly  licensed Ig7 

Examinations.     See  Indictment,  Remedies,  Unprofessional  Conduct. 

as  conditions  precedent  to  the  right  to  practice  medicine 143 

use  of  note  and  memoranda  in  answering  questions 138 

validity  of  the  requirement  as  a  qualification 14,  19,  22,  27,  51 

Exceptions.     See  indictment,  Remedies. 

christian  science  not  unconstitutional 64 

christian  science  is  the  practice  of  medicine  notwithstanding 63 

due  process  of  law  clause 20 

equal  protection  of  the  law 26 

indictment   IgO 

physician  practicing  at  the  passage  of  a  given  act  — validity  of 53,  54 

privilege  and  immunity  clauses '  19 

specific  language  not  necessary  for  bona  fide  religious  sect 63 

under  statute,  right  to  practice  medicine 153 

Extraordinary  Remedies.     See  Remedies. 

Expert  Witness 199 

Ex  post  facto  Clause "  28-31 


498 

Fees.     See  Evidence,  Indictment.  page 

condition  precedent  to  the  right  to  practice  medicine 143 

indictment  —  practicing  without  a  license 178 

recommending  medicine  for,  as  sufficient  evidence 190 

Felony. 

grounds  for  refusal  of  certificate,  practice  of  medicine 139 

Fines  and  Imprisonment.     See  Sanction  of  the  Law 214 

Former  Acquittal  or  Conviction  132 

Fourteenth  Amendment. 

due  process  of  law 20,  48 

equal  protection  of  the  law 25,  26 

exceptions  under  the  medical  practice  acts 25,  26 

revocation  of  license   24 

Fraud.     See  Practice  of  Medicine. 

revocation  of  license,  grounds  for 162 

Furnishing  Medicine. 

is  not  the  practice  of  medicine 129 

Gross  Immorality. 

as  grounds  for  refusal  of  certificate,  practice  of  medicine 139 

Healers 137 

Indictment  170-184 

burden  on  defendant 183 

compensation   177 

conclusions  183 

defense,  proving  more  than  one  infraction  in  one  count 183 

defendant's  school  or  branch  of  medicine 179 

duplicity 174 

essentials  generally   , 171 

exceptions  180 

information  generally  171 

itinerants   182 

miscellaneous  183 

misdemeanor  —  procedure  taken  170 

names  of  persons  treated  by  accused 175 

prior  practitioner,  etc 181 

registration  in  county  of  residence 182 

treating  human  beings   179 

uncertainty   174 

without  having  first  been  examined  and  obtained  a  license  as  required 

by  law 178 

Injunction.     See  Remedies  231 

Intent.     See  Evidence. 

Itinerant  Vendors.     See  Indictment. 

defined   87 

due  process  of  law 24 

imposition  of  a  tax  by  a  municipality,  validity  of 58 

imposition  of  a  tax  by  a  state,  validity  of 56 

titles  of  medical  practice  acts 43 

Jeopardy.     See  Evidence  200 

formal  acquittal  or  conviction 32 

Law,  Court  of.     See  Sanction  of  the  Law,  Unprofessional  Conduct. 

Legislation. 

legislature  is  limited  by  rule  of  reason 42 

License.      See    Evidence,    Indictment,    Medical    Practice    Act,    Practice    of 
Medicine,   Remedies,   Sanction  of  the   Law,  Unprofessional  Conduct. 


499 

PACK 

advertising  as  grounds  for  refusal  139 

changing  of,  as  grounds  for  refusal 138 

fraud  in  procuring 147 

granting  of  by  majority  vote  of  the  board 50 

power  of  board  to  revoke  a  license  for  cause 15 

practicing  under  a  licensed  physician 83 

refusal  to  grant  —  validity  of 52 

registration  of  —  as  a  condition  precedent 147 

revocation   15,    159-168 

under  prior  law  does  not  entitle  practice  under  subsequent  law 137 

unlicensed  person  may  own  and  manage  a  dentist's  office,  law  forbidding 

same  invalid 53 

unlicensed  persons  —  right  to  advertise,  validity  of 52 

validity  of  a  fee 51 

validity  of  taking  record  in  county  clerk's  office  as  proof  of  existence...  58 

Magnetic  Healing 36 

is  the  practice  of  medicine 110 

Mandamus.     See  Remedies. 

function  of  writ 222 

unprofessional  conduct 224 

Matriculation.     See   Remedies. 

Mechano  Neural  Therapy. 

is  the  practice  of  medicine   127 

Medicine.     See  Indictment,  Medical   Practice   Act,   Physicians,   Practice  of 
Medicine,  Evidence,  Remedies,  Sanction  of  the  Law. 

advertising  as  evidence  of  the  practice  of 81 

broad  interpretation  of  —  does  not  give  it  a  new  meaning 73 

defined    70 

furnishing  of  —  not  the  practice  of  medicine 129 

narrow  construction  of  —  based  on  a  fallacy 70 

practice   of  —  a  business   80 

practice  of  —  as  judicially  considered 76 

practicing  under  a  licensed  physician 83 

technical  word,  must  be  so  construed 69 

Medical  Colleges.     See  Physicians,   Remedies. 

diplomas,  etc.,  as  condition  precedent  to  the  right  to  practice  medicine  143 
reputability    of  —  same    to    be    determined    as    condition    precedent    to 

licensure    140 

Medical    Practice    Acts.      See   Evidence,    Indictment,    Medicine,    Physicians, 
Practice   of  Medicine,  Remedies,  Sanction  of  the  Law. 

advertising  as  evidence  of 81,  83 

amending   same  —  validity   of 59 

construction    of    65 

construing  technical  words  67 

construed  by  the  minority  88 

degrees  —  use  of  as  practice  of  medicine 82 

dentistry    85 

due  process  of  law  clause  in  amendment  fourteen 20 

equal  protection  of  the  law  in  Fourteenth  Amendment 20 

ex  post  facto  clause 28 

former  acquittal  and  conviction 32 

generally  to  whom  applied  94 

impairment  of  the  obligation  of  a  contract 31 

itinerant  physicians    87 


500 

PAGE 

language  of    —  must  be  construed  liberally .'    73 

licensed  physician 83 

material  remedy  85 

"medicine"  defined 70 

"medicine"  as  denned  by  the  legislature  and  by  the  courts 72 

"medicine"  —  broad  interpretation  of  —  does  not  give  it  a  new  meaning  73 

"medicine"  is  a  technical  word  and  must  be  so  construed 69 

mental  treatment   86 

midwives  —  inclusion  of  not  unconstitutional 60 

ophthalmology   85 

pleading  —  constitutionality   of    59 

police  power    5,  9 

powers  of  government  in  relation  to 3 

"practice  of  medicine"  as  judicially  considered 76 

practice  of  medicine  a  business 80 

"practicing"  under  the  direction  of  a  licensed  physician 83 

"prescribing   remedies"    79 

privilege  and  immunity  clauses   19 

purpose  of   65,  66,  89 

remedies  sent  from  an  adjoining  state 84 

repeal  —  validity  of  60 

schools  of  medicine   33,  60 

schools  —  so-called    60 

statutory  construction 65-93 

substituting  a  bill  in  the  legislature  —  validity  of 59 

territory  admitted  as  a  state,  effect  on 59 

titles 43 

"treatment  in  an  emergency," 86 

"treat,  operate  on" 79 

under  federal   constitution    , 2,  3,  7 

under  state  constitution  —  generally   41 

under  the  state  constitutions  —  validity  of  —  majority  view 41 

validity  of  excepting  physicians  under 53 

various  statutory  provisions   49 

Midwives. 

inclusion  under  medical  practice  act  —  not  unconstitutional 60 

practice  medicine  112 

Misdemeanor.     See  Indictment. 

Moral  Character.     See  Unprofessional  Conduct. 

advertising  as  grounds  for  refusing  a  license 139 

felony  or  gross  immorality 139 

illegal  change  of  license 138 

locus  in  quo  as  determinant  of 54 

prior  license  does  not  entitle  to  practice  under  subsequent  law 137 

proof  of  —  as  condition  precedent  to  the  right  to  practice  medicine....  137 

refusing  a  license 139 

using  notes  and  memoranda   138 

Moral  Turpitude. 

Nursing. 

is  not  the  practice  of  medicine. 129 

Obstetrics. 

is  not  the  practice  of  medicine 1 12 

summary  113 


501 

Offenses.  page 

continuing  or  single  —  sanction  of  the  law 214 

Office.     See  evidence. 

validity  of  law  precluding  an  unlicensed  person  from  owning  an 53 

Ophthalmology. 

defined   85 

is  the  practice  of  medicine 115 

summary  117 

Ordinary   Witness    199 

Osteopathy.  # 

included  under  medical  practice  acts  —  validity  of 34,  60 

evidence  193 

summary   102 

Penalties. 

enforcing  same  in  an  action  for  deht  —  validity  of 59 

titles  of  medical  practice  acts 43 

validity  of  penalties  imposed 55 

Physicians.  See  Evidence,  Indictment,  License,  Medical  Practice  Act, 
Medicine,  Practice  of  Medicine,  Remedies.  Sanction  of  the  Law, 
Unprofessional  Conduct. 

condition  precedent  —  must  register  license 147_148 

conditions  precedent  —  persons  excepted  from 153-159 

conditions   subsequent  —  unprofessional  conduct 159-168 

diplomas,  examinations,  feces,  etc.,  as  conditions  to  practice 143-147 

excepting  those  practicing  at  the  passage  of  a  given  -act  —  validity  of .  .     53 
medical      college  —  must      show      reputability      of  — as      condition      to 

practice    140-142 

moral  character  must  be  proven  as  condition  to  practice 137-139 

practicing  under  the  direction  of 83 

record  in  county  clerk's  office  as  proof  of  the  existence  of  a  license 38 

treatment  given  under 120 

Pleading. 

constitutionality  of  medical  practice  act 59 

Police  Power. 

defined   3 

practice  of  medicine 5 

Powers.     See  boards. 

Practice  of  Medicine.  See  Evidence,  Indictment,  Medicine,  Medical  Prac- 
tice Act,   Physicians,  Remedies. 

abortion  164 

acting  in  an  emergency  129 

advertising  as  evidence  of 81 

advertising  as  grounds  for  refusing  a  license 129,  139,  165 

bone-setting  surgery   128 

business  —  held  to  be 80 

cancer  cures  —  held  to  be 114 

chiropractic  is  the  practice  of  medicine 106 

chiropractic  is  not  the  practice  of  medicine 109 

christian  science  is  the  practice  of  medicine 103 

christian  science  is  not  the  practice  of  medicine 103 

clairvoyant,  magic-healers  —  held  to  be 125 

conditions  precedent  —  failure  to  perform 148 

conditions  precedent  —  general    requirements 135 

conditions  precedent  —  impossibility  of  performing  —  corporation 148 


502 

PAGE 

conditions  precedent — -  right  to  pursue  same  as  a  profession 132 

conditions  subsequent  159-168 

construing  technical  words 67 

corporations 123,  151 

dermatology  128 

diplomas,  examination,  fees,  etc.,  as  conditions  precedent 143 

eclectism  is  the  practice .  of  medicine 96 

examination  questions  —  using  notes  and  memoranda 138 

exceptions  under  the  statutes 153 

felony  or  gross^  immorality 139,  163 

fraud  in  procuring  a  license 162 

furnishing  medicine 129 

general  summary 130 

gross  immorality 163 

grounds  for  a  refusal  138 

itinerant  physicians   87 

judicially  considered 76 

language  must  be  construed  liberally 73 

licenses  —  registration  —  condition  precedent  147 

magnetic  healing  is  the  practice  of  medicine 110 

"material  remedy" 85 

mechano  neural  therapy 127 

"medicine"  defined  70 

"medicine"  as  defined  by  the  legislature  and  by  the  courts 72 

"medicine"  is  a  technical  word  and  must  be  so  construed 69 

"medicine"  —  the  narrow  construction  of  is  based  on  a  fallacy 70 

"medicine"  —  broadly  interpreted  is  not  given  a  new  meaning 73 

medical  titles  128 

"mental  treatment"    86 

midwives  and  obstetricians,  are  not  practicing  medicine 112 

minority  view    88 

moral  turpitude 163 

nursing _ 129 

ophthalmology,  is  the  practice  of  medicine 85,  115 

osteopathy  is  the  practice  of  medicine 96 

police  power 5 

"practicing"  under  the  direction  of  a  licensed  physician 83 

practicing  under  prior   law  does  not  entitle  practice  under  subsequent 

law 137 

"prescribing  remedies"  80 

prescribing  and  administering  remedies  for  a  compensation 123 

prescribing  tissue  foods  127 

procuring  or  aiding  and  abetting  a  criminal  abortion 164 

proof  of  moral  character 137 

remedies  for  a  compensation 123 

remedies  sent  from  an  adjoining  state 84 

reputability  of  applicant's  medical  college 140 

revocation  of  a  license  —  grounds  for 162 

right  to  pursue  same  as  a  profession 6,  132 

statute  limitations    168 

suggestive  therapeutics  Ill 

summary   93 

treatment  given  under  the  direction  of  a  legally  registered  physician.  . . .  120 

"treatment  in  an  emergency" 86 

"treat,  operate  on"  79 


503 

Prescribing  for  a  fee.     See  Evidence,  Fees.  PAGE 

Prima  Facie  Evidence.     See  Evidence. 

Procedure.     See  Indictment,  Unprofessional  Conduct. 

Prohibition  —  writ  of — See  Remedies. 

Qualifications. 

character  54 

requiring     a     diploma     or     an     examination     or     both     not     unreason- 
able,    14,  19,  22,  27,  51 

requirement  of  a  license  fee  —  validity  of 51 

validity  of  the  power  of  a  board  to  pass  on  applicants  for  a  license  and 
colleges 49 

Quasi  Judicial  Powers.     See  Boards. 

Registration  of  Licenses.     See  Indictment,  License,  Remedies. 

Relevancy  of  Evidence.     See  Evidence. 

Remedies  221-232 

diploma  from  a  reputable  college 226 

extraordinary  remedies  in  general 221 

function  of  the  writ  of  mandamus 222 

licensure  under  the  exceptions,  verifications,  etc 228 

mandamus 222 

material  —  practice  of  medicine 85 

matriculation 225 

registration 228 

requirement  of  a  four  years'  course 227 

requirements  of  a  diploma  and  an  examination 227 

sent  from  adjoining  state  —  the  practice  of  medicine 84 

writ  of  certiorari 231 

writ  of  injunction    231 

writ  of  prohibition 230 

Repeal. 

effect  of  subsequent  act  60 

Revocation  of  Licenses.    See  Licenses,  Practice  of  Medicine,  Sanction  of  the 
Law,  Unprofessional  Conduct. 

act  not  judicial  47 

due  process  of  law 48 

ex  post  facto  clause 28-31 

fourteenth  amendment  49 

j  ury  trial  49 

power  of  board  to  revoke  for  cause 15,  47,  48 

quasi-judicial  powers  48 

term  unprofessional  conduct  not  void  for  uncertainty 17,  46 

Sanction  of  the  Law 212-221 

fines  and  imprisonment   214 

non-compliance  with  the  law  renders  contract  for  services  void 216 

offenses  —  continuing  or  single 214 

refusal  or  revocation  of  a  license 218 

saving  clause 214 

Saving  Clause,  sanction  of  law 214 

Schools  or  Systems  of  Treatment.     See  Evidence,  Indictment. 

chiropractors 35,  106 

christian  scientists    38,  103 

clairvoyant  —  magic   healing  125 

condition  precedent  —  failure  to  perform   as   a  bar  to   the  practice   of 

medicine    48-151 

condition  precedent  —  impossibility  of  performing. 151-153 


504 

PAGE 

eclectics 33,  96 

exceptions  under  the  statutes  as  vesting  the  right  to  practice 153-159 

healers    37 

magnetic  healing  36,  1 10 

matriculation  —  extraordinary  remedies 225 

osteopathia 34,  96 

schools  —  so-called 60 

suggestive  therapeutics 35 

who  are  practicing  medicine 94 

Separation  of  Powers  12 

Statutory  Construction  65-93 

Statutory  Limitations  168 

Statutory  Provisions  —  various  —  under  state  constitutions 49 

Suggestive  Therapeutics 135 

evidence   194 

included  under  medical  practice  act  —  validity  of 35,  62 

is  the  practice  of  medicine  Ill 

Surgery. 

is  the  practice  of  medicine 128 

Taxation. 

imposition  by  municipality  or  by  state  —  validity  of 56,  58 

Tissue  Foods  —  Prescribing. 

is  the  practice  of  medicine 127 

Titles.' 

itinerant  physicians 43 

medical  —  practice  of  medicine  128 

Treatment.     See  Evidence,  Indictment. 

emergency  —  practice  of  medicine  86 

human  beings 179 

mental  —  practice  of  medicine 86 

names  of  persons  175 

summary   122 

under  a  legally  registered  physician 120 

Unprofessional  Conduct.     See  Physicians,  Practice  of  Medicine 201-211 

abortion  —  revocation  of  license 205 

appeal  to  court  of  law  —  revocation  of  license 207 

conditions  subsequent  —  revocation  of  licenses 159-168 

conviction  —  revocation  of  license 208-210 

due  process  of  law  —  revocation  of  license 15,  24,  201 

evidence — as  essential  to  sustain  a  conviction — revocation  of  license  208-210 

nature  and  power  of  the  evidence  —  revocation  of  license 15,  202 

procedure  necessary  —  revocation  of  license 16,  204 

term  not  void  for  uncertainty  17,  46,  47 

writ  of  mandamus 224 

Vital  Healing. 

is  the  practice  of  medicine 127 

Witnesses  —  See  Evidence. 

Writ  of  —  See  Remedies. 

certiorari  231 

injunction 231 

mandamus  222 

prohibition 230 

Words  and  Phrases 69-88 

(See  Medical  Practice  Act,  Medicine,  Practice  of  Medicine). 


